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A  SOCIETY  OF  STATES 


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A  SOCIETY  OF  STATES 

Sovereignty^  Independence  and  Equality 
in  a  League  of  Nations 


BY 

W.  T.  S.  STALLYBRASS,  M.A.(Oxon) 

Fellow  and  Vice-Principal  of  Brasenosb   College,   Oxford, 
OF  THE  Inner  Temple,  Barbibter  at  Law 


NEW  YORK 

E.  P.  DUTTON  &  COMPANY 

681  Fifth  Avenue 

3  8-+/0 


Copyright,  1919 
By  E.  p.  button  &  COMPANY 


All  Rights  Reserved 


Printtd  in  tht  Unittd  States  of  America 


PREFACE 

THE  idea  of  a  League  of  Nations  has 
now  taken  firm  root.  The  spade- 
work  has  been  done.  Leading  states- 
men of  every  country,  in  eloquent  and 
glowing  words,  have  proclaimed  their  ad- 
herence to  the  movement  for  its  constitution 
after  the  war.  It  has  extorted  even  the 
tribute  paid  to  vice — hypocrisy.  The  seed 
has  been  sown.  What  manner  of  fruit  it 
will  bear  will  depend  upon  the  knowledge 
and  patience  and  care  with  which  it  is  tended 
in  its  early  growth. 

The  first  task  that  lay  upon  those  who 
believed  that,  through  the  co-operation  of 
civilized  States  within  a  League,  the  world 
might  win  some  respite  from  war  and  the 


vi  Preface 

threat  of  war,  was  to  evangelize — to  hammer 
away  at  their  theme  and  announce  their  be- 
hef,  in  season  and  out  of  season,  until  a 
great  body  of  opinion  took  shape,  touched 
with  their  enthusiasm  and  filled  with  their 
faith.  Both  the  objects  at  which  the  League 
aims  and  the  efficacy  of  the  League  to  at- 
tain those  aims  now  met  with  a  wide  (if  not 
a  general)  acceptance.  The  first  task  is  ac- 
complished. 

The  French  say  that  our  whole  career  de- 
pends upon  our  first  step.  But  in  the  case 
of  a  League  of  Nations  mere  acceptance  of 
the  principle  will  not  in  itself  guarantee  suc- 
cess. The  foundations  must  be  truly  laid. 
That  can  only  be  if  the  statesmen  of  the 
world  bring  to  bear  all  the  knowledge  and 
ability  of  which  they  are  possessed  on  set- 
tling the  constitution  of  the  League. 
Hitherto,  with  the  exception  of  President 


Preface  vii 

Wilson,  the  statesmen  have  necessarily  been 
so  pre-occupied  with  the  effective  prosecu- 
tion of  the  war  that  they  have  had  little 
time  or  energy  to  consider  the  details  of 
international  reorganization.  They  have 
been  as  studiously  vague  as  they  have  been 
eloquent  in  all  their  statements  on  the  sub- 
ject. Even  the  men  to  whose  enthusiasm 
the  movement  owes  its  strength  have  been  so 
concerned  to  gain  acceptance  of  the  general 
principle  that  they  have  devoted  relatively 
little  consideration  to  particular  aspects  of 
the  problem.  The  amateur  constitution- 
builder  has  been  building  on  so  large  a  scale 
that  he  has  not  had  time  to  consider  the  plan 
in  detail.  Yet  if  the  League  is  to  achieve 
its  aims,  the  details  also  will  count.  We 
must  lie  under  no  illusions  in  the  magic  of 
a  mere  document;  it  will  not  be  enough  that 
the  constitution  of  the  League  is  accepted 


viii  Preface 

unless  men  believe,  with  conviction,  in  the 
principle  which  it  embodies,  and  are  ready 
to  work  whole-heartedly  and,  if  necessary, 
to  fight  for  that  principle.  It  is  no  less  true 
that  generous  enthusiasms  and  intellectual 
assent  will  not  of  themselves  be  sufficient 
to  make  the  League  a  success  if  the  constitu- 
tion is  not  rightly  framed.  To  rush  into  a 
League  without  full  and  careful  preliminary 
investigation  would  be  to  invite  disasters  as 
bad  as  those  from  which  we  already  suffer. 
The  time  has  now  come  when  the  numer- 
ous points  which  have  to  be  settled  before 
the  idea  can  be  given  life  should  be  carefully 
and  impartially  thrashed  out  one  by  one. 
The  ground  must  be  prepared  for  the  states- 
men; and  part  of  that  preparation  lies  in 
clearing  our  minds.  In  this  little  volume  I 
have  endeavoured  to  deal  with  one  small  cor- 
ner of  the  building. 


Preface  ix 

In  a  book  written  nearly  two  years  ago 
we  are  warned  that  "the  first  question  wliich 
every  Government  will  ask  about  the 
League  will  be:  'In  what  particular  does  it 
limit  my  sovereignty?'  "^  If  an  ordinary 
Englishman  is  told  that  under  a  League  of 
Nations  Great  Britain  will  lose  her  inde- 
pendence, he  will  naturally  refuse  to  accept 
a  League  of  Nations  as  a  proper  or  indeed 
even  a  tolerable  solution  of  the  present  war. 
Again,  if  he  is  told  that  after  the  war  Great 
Britain  will  have  no  more  say  in  interna- 
tional difficulties  than  Paraguay,  he  is  cer- 
tainly not  likely  to  become  a  supporter  of 
the  League.  Yet  he  has  been  and  he  will 
be  again  told  all  these  things.  It  is  my 
object  here  to  consider  how  far  it  is  true 

^  Brailsford,  A  League  of  Nations,  ch.  10,  p.  309.  So  recently 
as  October,  1918,  Mr.  Harold  Spender  speaks  of  the  surrender 
of  sovereignty  as  the  "  most  formidable  objection  "  to  a  League 
of  Nations  {Contemporary  Review,  p.  414), 


X  Preface 

that  a  State  which  joins  a  League  of  Na- 
tions will  surrender  its  sovereignty  or  its 
independence,  and  to  what  extent  all  mem- 
bers of  the  League  will  be  equal.  In  the 
name  of  these  mystic  words— sovereignty, 
independence  and  equality — much  false  doc- 
trine has  been  advanced,  and  in  the  discus- 
sions of  these  topics  in  connection  with  the 
pro]3osed  League  of  Nations  there  has  been 
much  muddled  thinking  and  confused 
writing. 

The  roots  of  the  present  lie  deep  in  the 
past;  the  future  will  be  rooted  in  the  present. 
You  can  no  more  take  Society  to  pieces  and 
by  putting  it  together  again  create  a  new 
and  different  society  than  you  can  dismantle 
a  Ford  car  and  by  assembling  the  parts 
again  produce  a  Rolls-Royce.  Human  pas- 
sions and  inherited  modes  of  thought,  the 
desires  and  ideals  of  men,  are  not  changed 


Preface  xi 

in  a  few  years  or  even  in  a  generation.  Prog- 
ress is  slow :  it  comes  by  gradual  modification 
and  adaptation  of  existing  institutions,  not 
by  pulling  up  by  the  roots  all  that  has  gone 
before.  If,  then,  the  result  of  our  inquiry 
is  to  show  that  the  union  of  civilized  States 
hi  a  League  involves  no  violent  change  from 
the  past — that  a  League  of  Nations  is  the 
natural  super-structure  to  raise  upon  the 
edifice  of  the  European  State,  it  will  pro 
tanto  go  to  show  that  the  path  we  are  tread- 
ing is  leading  in  the  right  direction,  and  one 
along  which  we  may  hope  to  arrive  at  some 
real  and  permanent  improvement  in  human 
relationships. 

The  sovereignty  and  independence  of 
States  is  a  conception  common  to  interna- 
tional lawyers  and  to  moral  and  political 
philosophers.  Much  of  the  difficulty  of  the 
subject  arises  from  the  fact  that  writers  in 


xii  Preface 

these  diverse  fields  have  used  the  same  terms 
to  cover  different  conceptions.  The  lawyers 
try  to  describe  international  relations  as  they 
are ;  the  philsophers  Hmn  them  as  they  ought 
to  be.  In  a  discussion  of  the  subject  of  this 
book  we  have  to  bear  in  mind  both  points 
of  view — for  a  wise  change  must  have  both 
a  necessary  connection  with  the  past  and  a 
real  consistence  with  the  end  at  which  we 
aim. 

I  have,  therefore,  approached  the  topic 
in  the  following  manner.  After  indicating 
the  possible  alternatives  to  a  League  of 
Nations — and  the  decisive  argument  for  a 
League  of  Nations  is  that  there  seems  to 
be  no  alternative  which  holds  out  any  hope 
for  the  future  of  civilization. — I  state 
shortly  the  theory  of  the  sovereign  in- 
dependent State  in  its  logical  perfection.  I 
then  examine  the  extent  of  the  rights  which. 


Preface  xiii 

according  to  the  practice  of  the  statesmen 
and  the  beHefs  of  the  international  lawyers 
of  the  nineteenth  century  were  believed  to 
attach  to  the  State  as  a  result  of  its  sov- 
ereignty, independence,  and  equality  with 
other  States.  In  other  words  the  practical 
meaning  of  these  words  is  explained.  Only 
if  we  know  what  we  have,  can  we  know  what 
we  are  losing.  I  next  discuss  to  what  extent, 
if  at  all,  the  conceptions  of  sovereignty,  in- 
dependence, and  equality  will  undergo  a 
change  if  a  League  of  Nations  is  constituted, 
and  conclude  by  a  consideration  of  the  rela- 
tion of  the  proposed  changes  to  the  true  pur- 
poses of  State-existence. 

Although  I  have  a  firm  conviction  in  the 
need  for  the  creation  of  a  League  of  Nations 
and  am  inspired  by  a  real  hope  that  with 
a  changed  mind  throughout  the  world  it  may 
acliieve  its  purpose,  I  have  not  written  as 


xiv  Preface 

a  partisan  but  dispassionately,  in  the  sure 
belief  that  only  honest  and  impartial  discus- 
sion can  be  of  use.    Difficulties  that  are  not 
faced  now  mil  only  have  to  be  met  when 
it  is  too  late.    Nothing  can  be  gained  by  not 
recognizing  the  facts.     But  the  discussion 
is  necessarily  limited  to  the  most  authorita- 
tive schemes  which  have  been  put  forward, 
and  I  have,  therefore,  for  the  most  part  con- 
fined myself  to  propositions  which  are  ap- 
plicable to  those  schemes.     They  will  be 
found  at  the  end  of  this  volume.     Where 
I  have  departed  from  this  rule  and  have 
made  obsei-vations  applicable  to  the   pro- 
posals of  some  only  of  the  advocates  of  a 
League,  I  have  tried  to  make  this  clear. 

This  little  book  makes  no  pretensions 
either  to  learning  or  to  originality.  It  is, 
however,  I  hope,  as  clear  and  simple  as  is 
possible  in  view  of  the  difficulty  of  a  subject 


Preface  xv 

which  is  confounded  by  much  abstract 
speculation  and  divergent  practice;  and  at- 
tains, I  hope,  such  substantial  accuracy  as 
Is  consistent  with  that  clarity  and  simplicity 
at  which  I  have  aimed.  Had  I  not  been 
sometimes  dogmatic  when  dogmatism  was 
perhaps  not  justified  and  had  I  for  the  sake 
of  formal  accuracy  qualified  every  statement 
made,  the  book  would  have  been  so  over- 
loaded with  detail  that  my  object  would  have 
been  defeated.  If  any  reader,  who  has  not 
previously  made  a  study  of  this  subject,  be- 
comes as  a  result  of  reading  it  a  little  clearer 
in  his  ideas  my  purpose  will  have  been 
attained. 

I  am  greatly  indebted  to  Mr.  H.  N. 
Spalding  for  the  suggestions  he  made  when 
the  book  was  in  manuscript;  and  to  Dr. 
Hazel,  of  Jesus  College,  and  Mr.  A.  J.  Jen- 
kinson,  and  Mr.  R.  W.  Jeffery,  of  Erase- 


xvi  Preface 

nose  College,  for  reading  the  proofs,  the 
more  so  as  they  found  time  to  do  me  this 
kindness  whilst  heavily  engaged  in  labours 
directed  to  making  possible  the  League  of 
Nations  by  the  triumph  of  our  arms  in  the 
field. 

Oxford, 

October  1st,  1918. 


CONTENTS 


CHAPTER  PAGE 

Introductory — The  Three  Alternatives; 
World  Dominion;  The  Sovereign 
Independent  State;  The  League 
of  Nations 1 

• —     I.     The  Logical  Theory    of    the    Sov- 
ereign Independent  State       .      .       11 

II.  The  Custom  and  Practice  of  Civil- 
ized Nations 23 

III,  The  League  of  Nations    ....       81 

IV.  The  Free  Self-governing  State      .     147 

V.    The  Ultimate  Aim  of  International 

Organization 161 

APPENDIX 

I.    The   League   of   Nations    and    the 

American  Constitution  ....     167 

11,  Schemes  for  a  League  of  Nations; 
(1)  The  Platform  of  the  League 
OF  Nations  Society;  (2)  The  Plat- 
form OF  the  League  to  Enforce 
Peace 179 

III,  President  Wilson's  Programme  .      .     187 

IV,  Viscount  Grey's  Proposals    .     .      .     225 

xvii 


•M 


INTRODUCTORY 
THE  THREE  ALTERNATIVES 


A  SOCIETY  OF  STATES: 

OR 

Sovereignty,  Independence  and 
Equality  in  a  League  of  Nations 

Introductory  :  The  Three  Alternatives 

world-dominion:    the    sovereign    inde- 
pendent state :  the  league  of  nations 

POLITICAL  communities  may  regu- 
late their  relations  to  each  other 
under  any  one  of  three  possible  sys- 
tems. Two  of  these  have  been  tried  and 
have  been  found  wanting;  the  third  is  now 
under  the  consideration  of  a  distraught 
civilization. 

The  Middle  Ages  were  dominated  by  the 
conception   of   a   common   superior   before 


4  A  Society  of  States 

whose  will  States  were  to  bow,  whose  com- 
mands they  were  to  obey,  and  whose  deci- 
sions upon  differences  between  them  they 
were  to  accept.  That  common  superior 
Europe  found  first  in  the  Roman  Emperor, 
later  in  the  Pope.  In  the  Middle  Ages 
from  1000  a.d.  to  1500  a.d.  the  idea  of  right 
was  the  leading  idea  of  statesmen;  that  the 
period  is  characterized  by  the  continued 
existence  of  small  States;  and  that  medieval 
wars  were  as  a  rule  wars  of  rights.  But  it 
must  not  be  forgotten  that  "the  imperial 
idea  was,"  as  Stubbs  says,^  "but  a  small  in- 
fluence compared  with  the  superstructure 
of  right,  inheritance  and  suzerainty  that 
legal  instincts  and  a  general  acquiescence 
in  legal  forms  had  raised  upon  it."  In  the 
course  of  time  quarrels,  corruption,  and  ob- 
scurantism on  the  one  side,  a  growing  sense 

'  Lectures  on  Medieval  and  Modern  History,  lect.  ix.,  p.  246. 


Introductory  5 

of  nationality  and  a  growing  desire  for  free- 
dom on  the  other,  brought  to  an  end  such 
law  and  order  as  the  Imperial  and  Papal 
supremacy  secured. 

After  the  Reformation  came  a  new  con- 
ception of  the  relation  in  whicli  political 
communities  stand  to  each  other.  We  pass 
from  a  period  in  which  the  dominating  in- 
fluence is  right  to  a  period  in  which  the 
dominating  influence  is  force.^  It  was  the 
birth  of  the  State  within  the  meaning  of 
International  Law,  States  were,  according 
to  this  doctrine,  sovereign,  independent,  and 
equal  entities.  Implicit  in  this  conception 
is  the  belief  that  in  international  relations 
might  is  right;  but  over  its  naked  horror, 
which  may  be  seen  best  revealed  in  the 
works  of  modern  German  writers,  Grotius, 
whose  great  book  on  the  Law  of  War  and 

*  Ibid,  led.  ix.  and  x. 


6  A  Society  of  States 

Peace  was  published  in  1625,  and  his  suc- 
cessors threw  a  cloak  of  decency  to  which 
the  name  of  International  Law  has  been 
given.  Decked  out  by  jurists  and  increas- 
ingly obscured  by  custom,  this  underlying 
notion  has  yet  been  accepted  by  the  civilized 
world  from  the  Reformation  until  the  pres- 
ent war. 

During  the  last  four  years  the  cloak  has 
been  torn  away.  The  scales  have  fallen 
from  our  eyes.  The  civihzed  world  has  been 
in  travail,  and  hopes  are  rising  high  that  of 
that  travail  will  be  born  a  new  system  of 
State-relationship — the  Rule  of  Law.  The 
phrase  now  usually  employed  to  express 
these  hopes  is  a  League  of  Nations.  The 
conception  expressed  in  this  phrase  combines 
and  reconciles  that  which  is  valuable  and 
helpful  in  the  idea  of  the  sovereignty  and 
independence  of  States  with  the  existence 


\ 


Introductory  7 

of  a  common  organ  to  act  on  behalf  of  those 
States  for  certain  purposes. 

The  system  of  the  Holy  Roman  Empire 
was  a  monarchy ;  the  system  of  the  last  three 
hundred  years  was  ill-disguised  anarchy; 
the  League  of  Nations  will  be  a  democracj'^, 
for  it  means  the  freedom  and  equality  of 
VyStates  under  the  law.  In  a  League  of  Na- 
tions every  member  will  delegate  to  the 
League  certain  of  the  attributes  of  its 
sovereign  power  and  its  independence.  The 
schemes  for  a  League  of  Nations  hitherto 
proposed  for  public  consideration  differ 
from  one  another  in  several  respects;  but 
this  is  a  characteristic  common  to  them  all. 
It  is  admitted  by  most  of  those  who  place 
their  hopes  on  such  a  League;  it  is  raised 
as  an  objection  by  those  who  regard  the 
notion  of  such  a  League  with  distrust  or 
even  repugnance. 


8  A  Society  of  States 

So  we  find  on  the  one  side  Mr.  Wells^ 
calling  in  aid  the  analogy  of  the  individual; 
"JSTo  man  can  join  a  partnership  and  re- 
main an  absolutely  free  man.  You  can- 
not bind  yourself  to  do  this  and  not  to  do 
that  and  consult  and  act  with  your  associates 
in  certain  eventualities  without  a  loss  of 
your  sovereign  freedom";  and  Sir  Frederick 
Pollock*  admitting  that  the  convention  by 
which  the  League  of  Nations  is  organized 
must  depend  for  its  binding  force  "on  the 
renouncement  by  every  party  to  it,  in  some 
measure,  of  independent  sovereign  power, 
and  in  particular  of  the  right  to  be  judge 
in  one's  own  cause."^     On  the  other  side. 


'  In  the  Fowih  Year,  ch.  3,  p.  28. 

*  The  League  of  Nations  and  the  Coming  Rule  of  Law. 

*  Lord  Bryce's  Group,  however,  in  their  "Proposals  for  the 
Prevention  of  Future  Wars"  speak  of  the  I>eague  as  "an  asso- 
ciation or  union  of  independent  and  sovereign  States,"  and 
definitely  claim  that  existing  States  will  retain  their  sovereignty. 
The  articles  of  the  Fabian  Society's  Draft  Trealy  invariably 


Introductory  9 

the  curious  may  be  referred  to  ^I.  Seigno- 
bos'  article  in  The  New  Europe  of  April 
4th,  1918,  and  Mr.  Hilaire  Belloc's  in  The 
New  Witness  of  July  12th,  1918,  as  in- 
stances of  the  opposition  to  the  League 
raised  by  its  critics  on  this  ground.''  We  are 
told  that  no  political  community  careful  of 
its  honour  or  its  prestige  can  surrender  to 
an  external  body  the  functions  proi)er  to  its 
sovereignty  or  its  independence. 

It  is  the  object  of  these  pages  to  establish 
two  propositions.  First,  that  the  doctrine  of 
the  absolute  sovereignty  and  independence 
of  States,  wliilst  in  its  day  it  met  a  need  of 

speak  of  the  signatory  States  as  "independent  sovereign  States." 
whilst  in  the  introduction  to  the  Draft  Treaty  it  is  claimed  that 
"no  impairment  of  sovereignty  and  no  sacrifice  of  independence 
are  proposed."  This,  however,  seems  clearly  inconsistent  with 
the  statement  on  the  next  page  that  the  establishment  of  a  super- 
national  authority  is  involved.  Particulars  of  the  chief  schemes 
for  a  League  of  Nations  may  be  found  in  The  Framework  of  a 
Lasting  Peace,  edited  by  Leonard  S.  Woolf. 

»  Cf.  J.  B.  Firth  in  The  Fortnightly  Review,  September,  1918. 


10  A  Society  of  States 

the  times  and  was  an  instrument  of  prog- 
ress, no  longer  serves  a  useful  purpose,  for 
it  is  not  in  conformity  with  fact;  secondly, 
that  whilst  the  League  of  Nations  does  un- 
doubtedly involve  a  rupture  with  the  theories 
which  have  dominated  the  last  three  cen- 
turies, it  does  not  involve  so  great  a  de- 
parture from  the  practice  of  the  recent  past 
as  is  sometimes  supposed. 


THE  LOGICAL  THEORY  OF  THE 

SOVEREIGN  INDEPENDENT 

STATE 


CHAPTER  I 

The  Logical  Theory  of  the  Sovereign 
Independent  State 

IN  the  treaty  made  between  Athens  and 
Sparta  in  421  B.C.  one  of  the  clauses 
provided  that  the  Delphians  should 
thenceforth  "make  their  own  laws,  admin- 
ister their  own  justice,  and  raise  their  own 
taxes."^  Grotius,  the  great  Dutch  jurist 
whose  famous  book  already  referred  to  has 
given  him  the  reputation  of  being  the  Father 
of  International  Law,  reminds  us  of  the 
clause  in  the  treaty  of  421  B.C.  when  he  is 
about  to  discuss  the  nature  of  sovereignty.^ 
Unfortunately  the  idea   of   sovereignty  is 

^  Thucydides,  History,  v.,  18. 
*  De  Jure  Belli  et  Pads,  I.,  iii.,  6,  1. 
13 


14  A  Society  of  States 

not  limited  to  those  attributes  of  self-gov- 
ernment which  were  given  to  the  Delphians. 
The  Germans  are  a  logical  people:  their 
premises  are  often  wrong,  but  no  race  has 
ever  deduced  more  accurately  the  correct 
conclusions  from  a  priori  principles.  It  is 
not  surprising,  therefore,  that  we  must  turn 
to  the  German  poHtical  philosophers  to  find 
the  logical  perfection  of  the  doctrine  of  the 
sovereign  independent  State.  Frederick 
the  Great  gave  the  world  an  illuminating 
example  of  the  practical  application  of  the 
doctrine.  Hegel,  breaking  away  from 
Kant's  pacificism,  laid  a  philosophic  founda- 
tion for  the  dogma  which  places  the  State 
above  all  moral  restrictions.  The  seed  was 
sown  in  fruitful  soil.  We  are  now  reaping 
the  fruits  of  the  Hegelian  philosophy.^    Of 

'  Even  in  England  we  6nd  the  Hegelian,  Professor  Bosanquet, 
absorbing  Hegel's  dangerous  teaching  on  the  non-morality  of 
the  State. 


The  Sovereign  Independent  State    15 

the  many  Germans  who  developed  this 
particular  side  of  Hegel's  teaching  none 
probably  has  had  a  wider  influence  over 
modern  German  thought  than  Treitschke. 
Treitschke  knew  something  of  international 
law,  and  was  certainly  less  extreme  in  his 
views  than  many  of  his  disciples.  The 
logical  conclusions  wliich  can  be  and  have 
been  drawn  from  the  State-sovereignty 
theory,  and  which  are  generally  accepted  in 
Germany,  may  therefore  be  fairly  shown  in 
the  following  extracts  from  Treitschke's 
most  important  book  Politik: 

"Since  it  is  impossible  to  imagine  a  higher  judge 
set  above  the  States,  which  by  their  very  nature 
are  supreme,  it  is  impossible  that  the  necessity  for 
war  should  be  driven  out  of  the  world  by  force  of 
argument.  .  .  .  Even  among  civilized  nations,  war 
is  still  the  only  form  of  lawsuit  by  which  the  claims 
of  States  can  be  asserted.  .  .  .  Every  State  will  for 
its  own  sake  limit  its  sovereignty  to  a  certain  extent 
by  means  of  treaties.     When  States  conclude  agree- 


16  A  Society  of  States 

ments  with  one  another,  they  do  to  some  extent 
restrict  their  powers.  But  this  does  not  really  alter 
the  case,  for  every  treaty  is  a  voluntary  self -limita- 
tion of  an  individual  power,  and  all  international 
treaties  contain  the  proviso:  rebus  sic  stantibus. 
One  State  cannot  hamper  the  exercise  of  its  free 
will  in  the  future  by  an  obligation  to  another  State. 
The  State  has  no  supreme  judge  placed  above  itself, 
and  therefore  it  concludes  all  its  treaties  with  that 
mental  reservation.*  This  is  confirmed  by  the  fact 
that,  so  long  as  there  is  an  International  Law,  the 
moment  that  war  is  declared  all  treaties  between 
the  belligerent  nations  are  cancelled.  Now  every 
sovereign  State  has  the  unquestionable  right  to  de- 
clare war  when  it  so  desires ;  and  therefore  it  is 
possible  for  every  State  to  cancel  its  treaties.  .  .  . 
The  highest  moral  duty  of  a  State  is  to  maintain 
its   power.^  .  .  .  The   State   is   the   supreme   human 

*  So  Machiavelli:  "A  prudent  ruler  ought  not  to  keep  faith, 
when  by  so  doing  it  would  be  against  his  interest,  and  when  the 
reasons  which  made  him  bind  himself  no  longer  exist  "  {The 
Prince,  ch.  18).  Hence  in  part  no  doubt  Treitschke's  admiration 
for  Machiavelli.  This  detestable  doctrine  was  also  propagated 
by  the  Portuguese  Jew,  Spinoza. 

^  It  may  be  thought  that  Treitschke's  admission  that  the  State 
has  a  "moral  duty"  traverses  my  statement  that  the  State  is, 
according  to  these  German  thinkers,  non-moral  or  above  all 
moral  restrictions.  To  speak  of  the  "moral  duty"  of  power  is, 
however,  a  misuse  of  words.  It  is  only  by  a  metaphor  that  we 
can  speak  of  the  "moral  duty"  of  the  octopus  to  live;  it  is  no  less 


The  Sovereign  Independent  State     17 

community;  therefore,  in  the  case  of  the  State,  there 
can  be  no  duty  of  self-sacrifice.  .  .  ,  For  one  State 
to  sacrifice  itself  in  the  interests  of  another  would 
be  not  only  immoral,  it  would  be  contrary  to  that 
principle  of  self-preservation,  which  is  the  highest 
dutv  of  a  State.  .  .  .  Even  in  its  intercourse  Avith 
other  States,  the  preservation  of  its  sovereignty  is 
still  the  highest  duty  of  the  State.  The  enduring 
provisions  of  International  Law  are  those  which  do 
not  affect  sovereignty,  that  is  to  say,  those  concerned 
with  ceremonial  and  with  international  private  law. 
...  A  State  must  have  a  very  highly-developed 
sense  of  honour  if  it  is  not  to  be  disloyal  to  its 
own  nature.  The  State  is  not  a  violet  blooming  in 
the  shade.  Its  power  must  stand  forth  proud  and 
refulgent,  and  it  must  not  allow  this  power  to  be 
disputed,  even  in  matters  of  forms  and  symbols. 
.  .  .  No  State  in  the  world  is  to  renounce  that 
egotism  which  belongs  to  its  sovereignty.®  ,  .  .  The 

metaphorical  to  say  that  the  highest  moral  duty  of  the  State  is  to 
uphold  its  power"  (Politik,  i.,  100),  or  to  aflBrm  that  "repudiation 
of  its  own  power  is,  so  far  as  the  State  is  concerned,  equivalent 
to  the  sin  against  the  Holy  Ghost."  (Ibid.,  i.,  34.)  It  is  a  sin- 
gular tribute  to  the  universal  claims  of  morality  that  almost 
without  exception  the  votaries  of  Force  invoke  the  support  of 
Right  and  Duty,  Justice  and  Honour  in  spite  of  the  patent  con- 
tradiction. 

*  These  translations  are  taken  from  IVIr.  H.  W.  C.  Davis's 
admirable  book,  The  Political  Thought  of  Ileinrich  von  Treitschke, 
pp.  151-178. 


18  A  Society  of  States 

inalienable  kernel  of  sovereignty  lies  legally  in  the 
authority  to  determine  the  scope  of  one's  own  rights 
of  sovereignty,  and  politically  in  the  appeal  to 
arms."^ 

Such  were  Treitschke's  opinions;  such 
were  the  opinions  of  most  German  writers. 
If  any  doubt  it,  let  him  read  the  extracts 
from  Adolph  Lasson  and  others  collected 
in  the  Introduction  to  Dr.  J.  B.  Scott's  book 
on  A  Survey  of  International  Relations  be- 
tween the  United  States  and  Germany, 
1914-1917.^ 

According  to  this  doctrine  because  the 
State  is  sovereign  it  has  the  right  to  make 
and  unmake,  call  in  aid  or  disregard  the 
law;  because  it  is  independent  it  has  the 
right  to  carve  out  its  own  destiny  and  pursue 
its  own  ends  without  thought  or  observance 
of  the  like  right  in  other  States.    The  ethics 

»  Politik,  i.,  39. 

8  Pp.,  I.-IXX. 


The  Sovereign  Independent  State     19 

of  international  morality  resolve  themselves 
into 

"The  good  old  rule,  the  simple  plan, 
That  they  should  take  who  have  the  power 
And  they  should  keep  who  they  can."' 

As  Hobbes  said^°  many  years  ago  "in  all 
times  kings  and  persons  of  sovereign 
authority,  because  of  their  independency, 
are  in  continual  jealousies  and  in  the  state 
and  posture  of  gladiators,  having  their 
weapons  pointing  and  their  eyes  fixed  on 
one  another,  that  is,  their  forts,  garrisons 
and  guns,  upon  the  frontiers  of  their  king- 
doms, and  continual  spies  upon  their  neigh- 
bours: which  is  a  posture  of  war."  The 
whole  of  Hobbes'  description  of  the  rela- 

'  Cf.  Riimelin  {Ueber  das  Verhdltniss  der  PolitiJc  zur  Moral: 
Reden  und  Aufsdtze,  vol.  i.,  p.  161):  "The  preservation  of  the 
State  justifies  every  sacrifice  and  is  superior  to  every  Command- 
ment." 

*"  Leviathan,  ch.  13. 


20  A  Society  of  States 

tion  of  man  to  man  in  his  imaginary  state 
of  nature  is  an  admirable  picture  of  the 
relation  of  State  to  State  according  to  tliis 
doctrine.  Man  in  the  state  of  nature,  he 
says,  makes  aggression  upon  man  either  be- 
cause two  men  want  the  same  thing,  or 
because  one  man  is  afraid  that  another  will 
attack  him  first,  or  to  preserve  his  self- 
esteem.  The  three  principal  causes  of 
quarrels  therefore  are  competition,  diffidence 
(i.e.,  distrust),  and  glory.  "To  this  war 
of  every  man  against  every  man  this  also 
is  consequent  that  nothing  can  be  unjust. 
The  notions  of  right  and  wrong,  justice  and 
injustice,  have  there  no  place.  Where  there 
is  no  common  power,  there  is  no  law;  where 
no  law,  no  injustice."  And  his  conclusion 
is  that  in  a  state  of  nature  the  life  of  man 
is  "solitary,  poor,  nasty,  brutish  and  short." 
The  views  so  lucidly  presented  by  Treit- 


The  Sovereign  Independent  State     21 

schke  are  the  logical  corollary  to  the  theory 
that  States  are  sovereign  and  independent 
units,  and  it  is  the  working  of  these  views 
in  practice  which  we  may  observe  if  we  look 
at  Prussian  State-craft  and  diplomacy" 
and  the  Prussian  methods  of  waging  war 
either  under  Frederick  the  Great  or  in  the 
twentieth  century.  If  the  State  is  supreme 
and  independent,  it  logically  follows  that  the 
preservation  of  its  sovereignty  entire  and  its 
aggrandisement  at  the  expense  of  other 
States  are  its  chief  end,  and  that  treaties 
are  only  one  means  to  that  end;  force  and 
fraud  are  other  means  to  the  same  end  and 
militarism  and  dishonest  diplomacy  are  en- 
throned; "honour"  means,  not  honesty  or 

^^  Diplomacy  had  its  birth  with  the  sovereign  independent 
State.  Prussian  diplomacy  to-day  reminds  us  of  Stubbs'  state- 
ment (op.  eit.,  lect.  x.,  p.  269)  that  diplomacy  was  "in  its  be- 
ginning a  sort  of  Kreigspeil,  in  which  threats  and  bribes  on 
paper  took  the  place  of  mobilisation  and  marches,  sieges  and 
invasions." 


22  A  Society  of  States 

chivalry  or  justice,  but  wide  territories  and 
a  dominating  trade  and  an  armed  force 
which  shall  strike  terror  into  the  hearts  of 
all  possible  rivals.  We  may  well  apply  to 
the  philosophy  of  international  relations 
held  by  the  German  school  the  expression 
"reasoned  savagery"  which  Huxley  in  his 
famous  Romanes  Lecture  used  of  the 
political  philosophy  of  fanatical  individ- 
ualism." 

*2  Evolution  and  Ethics,  p.  115. 


THE  CUSTOM  AND  PRACTICE  OF 
CIVILIZED  NATIONS 


CHAPTER  II 

The  Custom  and  Practice  of  Civilized 

Nations 

ALL  nations,  however,  are  not  so  clear- 
headed or  so  logical  as  the  German. 
Most  writers  of  other  nations,  and 
some  Germans,  have  not  carried  the  theory 
of  sovereignty  to  its  logical  extreme.  "No 
custom,"  it  has  been  said,  "is  ever  a  pm*e 
mistake,  as  is  the  case  with  many  theories, 
and  with  the  doctrines  which  rest  on  them."^ 
No  matter  how  loudly  professors  and  states- 
men have  proclaimed  the  theory  of  the  ab- 
solute independence  of  States,  custom  has 
always  rejected  it.    The  whole  structure  of 

^  Lorimer,  Institutes  of  the  Law  of  Nations,  vol.  i.,  p.  28. 

25 


26  A  Society  of  States 

so-called  Private  International  Law  has 
been  built  up  in  spite  of  this  theory  of  in- 
dependence.^ It  is  upon  the  custom  and 
usage  of  nations  that  most  English  writers 
have  based  their  views  of  International 
Law  without  an  over-nice  respect  for  logical 
consistency.  If  we  wish  to  understand 
where  things  stood  in  1914  we  must  under- 
stand the  views  srenerallv  held  outside  Ger- 
many  at  that  date.  I  propose  therefore  to 
state  and  examine  as  summarily  as  is  con- 

2  When  a  child  is  born  in  America  to  an  Englishman  the  jus 
soli  declares  the  son  an  American;  the  jus  sanguinis  declares  him 
an  Englishman.  Each  country  may  according  to  its  own  laws 
claim  him  as  its  subject.  When  a  Frenchman  owns  property  in 
England  it  may  become  necessary  on  his  death  to  decide  whether 
the  property  descends  according  to  the  French  or  English  law; 
when  a  Spaniard,  resident  in  Germany,  becomes  bankrupt  the 
question  arises  as  to  whether  Spanish  or  German  law  is  to  be 
applied,  and  what  recognition  one  State  will  give  to  the  applica- 
tion of  the  law  of  the  other.  A  contract  may  be  entered  into 
in  Austria  between  a  Dutchman  and  a  Greek  to  be  performed  in 
Japan,  and  enforcement  of  it  may  be  sought  in  the  American 
Courts.  Which  law  applies?  The  resolution  of  these  and  like 
"conflicts  of  law"  arising  from  the  intercourse  of  modern  inde- 
pendent States  is  the  domain  of  "Private  International  Law." 


The  Custom  of  Civilized  Nations     27 

sistent  with  substantial  accuracy  the  usually 
accepted  rules  and  principles  of  Interna- 
tional Law  bearing  on  the  question  of 
State-independence. 

That  those  States  which  are  recognized  as 
members  of  the  family  of  nations  are  sover- 
eign, independent,  and  equal  is  an  assump- 
tion which  underlies  almost  all  that  has 
been  written  upon  International  Law,  and 
by  many  writers  that  assumption  has  been 
regarded  as  an  essential  and  fundamental 
postulate.  So  Halleck,^  the  American  gen- 
eral whose  book  on  international  law  may 
be  found  on  every  British  warship,  calls 
"the  independence  of  sovereign  States  the 
true  basis  of  international  jurisprudence." 
But  law  must  be  in  conformity  with  fact; 
and  it  is  very  clear  that  States  are  not  in 
fact  equal  in  every  respect.     It  is  scarcely 

'  International  Law  (4th  ed.).  ch.  I.,  vol.  i.,  p.  7. 


28  A  Society  of  States 

more  true  that  States  are  sovereign  or  in- 
dependent in  an  absolute  sense.  Interna- 
tional jurists  have  recognized  tliis,  and  have 
overlaid  the  postulate  of  sovereignty,  inde- 
jjendence,  and  equahty  with  so  many  ex- 
ceptions and  provisos  that  the  words  have 
acquired  for  publicists  a  very  different 
meaning  from  that  which  they  bear  in  their 
primary  sense.  We  must  endeavour,  there- 
fore, to  ascertain  what  is  the  meaning  to 
international  lawyers  in  its  practical  applica- 
tion of  each  of  these  three  terms. 

§1.    THE  MEANING  OF  SOVEREIGNITY 

An  eminent  Oxford  historian  recently 
wrote  in  a  letter  to  The  Times :^  "Sov- 
ereignty is  a  definition,  not  a  thing."  But 
the    definition    needs    defining.       "Sover- 

*  Ernest  Barker:  June  28th,  1918. 


Tiie  Custom  of  Civilized. Nations     29 

eignty,"  says  Wheaton,'  the  great  Ameri- 
can publicist,  "is  the  supreme  power  by 
which  any  State  is  governed.  This  supreme 
power  may  be  exercised  either  internally  or 
externally.  Internal  sovereignty  is  that 
which  is  inherent  in  the  peojjle  of  any  State 
or  vested  in  its  ruler,  by  its  municij^al  con- 
stitution or  fundamental  laws.  .  .  .  Ex- 
ternal sovereignty  consists  in  the  independ- 
ence of  one  political  society  in  respect  to 
all  other  political  societies." 

Or,  in  the  better  known  language  of  John 
Austin,^  a  sovereign  power  is  one  to  which . 
the  generality  of  a  given  society  renders 
habitual  obedience  (the  positive  or  internal 
side  of  sovereignty)  and  which  is  not  itself 
habitually    obedient    to    any    determinate 


^  Elements  of  International  Law  (8th  ed.).  pp.  31-2. 
^  The  Province  of  Jurisjprudence  Determined,   Lect.    vi.    (3rd 
edition),  p.  241. 


30  A  Society  of  States 

human  superior   (the  negative  or  external 
side). 

Although  it  is  true,  as  Maine^  pointed 
out,  that  in  Austin  the  two  conceptions  of 
an  Independent  Political  Society  and  of 
sovereignty  are  interdependent  and  insepa- 
rable from  one  another,  the  difference  be- 
tween external  and  internal  sovereignty  is 
of  the  greatest  importance.  Internal  sov- 
ereignty belongs  to  the  organ  to  which  the 
people  delegates  its  sovereignty;  external 
sovereignty  is  the  possession  of  the  people 
itself,®  though  the  ruler  or  sovereign  of  a 
State  is,  in  international  law,  sometimes 
considered  as  representing,  in  his  person,  its 
sovereign  dignity/  With  internal  sov- 
ereignty international  law  is  not  directly 
concerned;  internal  sovereignty  will  not  be 

^  The  Early  Jlistory  of  Instihdions,  Lect.  xii.,  p.  348. 

'  Bryce,  Studies  in  fliafory  and  Jurisprudence,  vol.  ii.,  Essay  10. 

*  Halleck,  ubi  su-pra,  vol.  i.,  ch.  6,  p.  129. 


The  Custom  of  Civilized  Nations    31 

directly  affected  by  the  constitution  of  a 
League  of  Nations;  it  is  the  theory  of  ex- 
ternal sovereignty  alone  Avhich  will  have  to 
undergo  some  modification  if  the  League 
is  brought  into  existence/" 

It  is  fortunately  therefore  not  necessary 
to  traverse  the  arid  wilderness  which  has 
been  created  by  political  philosophers  and 
constitutional  lawyers  in  discussing  the  why, 
the  wherefore,  and  the  what  of  internal  sov- 
ereignty. But  even  from  the  point  of  view 
of  the  international  lawyer  the  conception 
of  sovereignty  cannot  be  properly  under- 
stood without  some  knowledge  of  the  cir- 
cumstances in  which  it  originated  and  the 
history  of  its  development.    For  from  those 

^"  The  theory  of  the  internal  as  well  as  of  the  external  sov- 
ereignty of  the  State  is  threatened  at  present.  The  Guild- 
Socialists  and  the  High-Churchmen  in  England,  the  Syndicalists 
in  France  are  all  attacking  the  sovereignty  of  the  State  from 
within:  see  Ernest  Barker's  Political  Thought  in  England  from 
Spencer  to  To-day. 


32  A  Society  of  States 

origins  and  from  that  development  it  takes 
its  present  form. 

In  the  days  of  the  great  Roman  jm'ists 
the  sovereignty  of  the  Roman  Emperor  was 
theoretically  supposed  to  have  been  derived 
from  and  delegated  to  him  by  the  Roman 
people.  It  is  from  a  later  period  that  the 
traditional  notions  of  sovereignty  come. 
The  traditional  theory  of  sovereignty  had 
its  beginnings  in  an  age  of  monarchs  and 
oligarcliies.  It  took  its  territorial  char- 
acter from  feudalism.  In  the  Dark  Ages  at 
first  the  only  sovereignties  in  existence 
were,  on  the  one  hand,  the  sovereignty  of 
the  chiefs  over  their  tribes,  such  as  the 
Franks  and  the  Lombards,  and,  on  the 
other,  the  world  sovereignty  of  the  Emperor 
of  Rome.  In  987  a.d.  the  King  of  the 
Franks  became  the  King  of  France;  sov- 
ereignty began  to  be   associated  with  the 


The  Custom  of  Civilized  Nations     33 

proprietorship  of  a  limited  portion  of  the 
earth's  sm-face.  Sovereigns  were  feudal 
lords."  Sovereignty  and  property,  in  real- 
ity distinct,  were  confounded  in  an  impene- 
trable haze/"  Subjects  were  regarded  as 
part  of  the  patrimony  of  their  rulers  to  be 
alienated  as  such  without  consultation  or 
consent.  The  will  of  the  sovereign  was  a 
will  imposed  upon  the  people.  "The 
States,"  as  Treitschke  said,  "have  not  issued 
from  the  sovereignty  of  the  people,  but 
were  created  against  their  will.'"^  In  the 
days  when  Eodin  and  Grotius  and  Hobbes 
wrote  the  sovereign  represented  the  people 
not,  as  in  England  now,  in  the  sense  that 
whatever  the  people  wills  becomes  the  will 
of  the  sovereign,  but  in  the  sense  that  what- 

11  Maine,  Avcient  Laiv,  ch.  4. 

1^  Westlake,  International  Law:  Peace,  ch.  5, 

"Treitschke,  Politilc,  i..  113. 


34  A  Society  of  States 

soever  he  ^^dlled  became  their  will/* 
Austin's  analysis  of  sovereignty  in  relation 
to  the  English  and  American  constitutions 
of  the  nineteenth  century  is  a  brilliant  tour 
de  force.  But  the  representative  Govern- 
ment of  a  free  people  cannot  without 
violence  be  cast  into  the  strait- jacket  of  the 
medieval  notion  of  sovereignty."  It  is 
scarcely  less  difficult  to  adapt  the  medieval 
notion  of  sovereignty  to  the  changed  cir- 
cumstances of  international  intercourse. 


§2.    THE      RIGHTS      OF  SOVEREIGNTY 

In  the  language  of  the  Civilians  the  sov- 
ereign dignity  of  the  State  was  majestas; 

^^  Sir  Leslie  Stephen,  Hohbes,  ch.  4,  p.  204. 

^*  This  is  seen  by  Professor  Jethro  Brown  amongst  others. 
"It  seems  probable,"  he  says  {Austinian  Theory  of  Law,  p.  286), 
"that  the  Jurisprudence  of  a  near  future  will  recognize  that 
the  State  itself  is  the  true  sovereign,  and  that  such  a  body  as 
the  Parliament  of  Great  Britain  should  be  described,  not  as  the 
sovereign,  but  as  the  sovereign-organ." 


The  Custom  of  Civilized  Nations     35 

the  parts  of  its  sovereign  power  were  spoken 
of  as  majestatis  jura,  the  rights  belonging 
to  and  constituting  that  sovereign  dignity. 
We  can  only  understand  the  real  meaning 
of  majestas  if  we  know  what  are  the  majes- 
tatis jura;  we  can  only  understand  the  real 
meaning  of  external  sovereignty  if  we  know 
the  rights  which  belong  to  a  State  because 
it  is  sovereign.  Neither  the  definitions  of 
the  lawyers  nor  a  study  of  historical  origins 
alone  will  leave  us  with  a  clear  conception 
of  what  sovereignty  in  international  law  in 
the  twentieth  century  means.  We  must 
now  therefore  to  achieve  our  purpose  ex- 
amine the  so-called  "rights"  of  sovereignty. 
A  State  by  virtue  of  its  sovereignty  has 
an  exclusive  authority  over  all  persons, 
things,  and  acts  within  its  territory  or  on 
its  ships  upon  the  high  seas.  That  is  to  say, 
it  and  it   alone  can  legislate   for  its  own 


36  A  Society  of  States 

dominions;  it  and  it  alone  can  act  as  judge 
and  enforce  its  decrees  wdthin  them.  Over 
its  own  subjects  it  exercises  some  personal 
jurisdiction  even  when  they  leave  its  terri- 
tory. Each  of  these  rights  betrays  clearly 
the  feudal  idea — the  one  tracing  back  to  the 
territorial  basis  of  feudalism,  the  other  to 
the  allegiance  of  the  man  to  his  lord. 

The  so-called  rights  of  sovereignty  are 
sometimes  treated  as  rights  attaching  to  in- 
dependence, but  of  this  more  anon.^'' 

§3.    MODIFICATIONS  OF  THE  "rIGHTS"  OF 
SOVEREIGNTY 

Usage  has,  however,  made  certain  inroads 
into  the  full  rights  of  sovereignty. 

The  conflict  which  may  arise  between  the 
territorial  jurisdiction  of  one  State  and  the 
personal   right   of   jurisdiction   of   another 

"  See  below,  p.  37. 


The  Custom  of  Civilized  Nations     37 

State  has  given  birth  to  the  body  of  rules 
which  is  usually  known  as  Private  Interna- 
tional Law.  Those  rules  are  in  fact  merely 
"the  concessions  and  relaxations  of  sov- 
ereign right"  which  are  usually  admitted  by 
civilized  States." 

But  it  is  not  only  in  the  sphere  of  Private 
International  Law  that  we  find  modifica- 
tions of  and  qualifications  upon  the  rights 
of  sovereignty. 

Chief  Justice  Marshall,  when  delivering 
the  opinion  of  the  Supreme  Court  of  the 
United  States  in  the  case  of  The  Schooner 
Exchange  in  an  elaborate  and  famous  judg- 
ment, stated  three  exceptions  to  the  full  and 
complete  power  of  a  nation  within  its  own 
territories.  The  foundation  of  each  of  these 
limitations   upon   national   jurisdiction,    he 

"  Hall,  International  Law  (7th  ed.),  pt.  I.,  ch.  2,  §  10,  p.  52. 
See  also  above,  p.  34. 


38  A  Society  of  States 

was  careful  to  point  out,  must  be  traced  to 
the  consent,  express  or  implied,  of  the  nation 
itself.  Otherwise  they  would  imply  a 
diminution  of  sovereignty  to  the  extent  of 
the  restriction,  and  an  investment  of  that 
sovereignty  to  the  same  extent  in  that  power 
which  could  impose  such  restrictions.  The 
three  cases  are :  the  exemption  of  the  person 
of  a  sovereign  from  arrest  or  detention 
vv'ithin  a  foreign  territory,  the  immunity 
given  to  foreign  ministers,  the  waiver  of 
jurisdiction  over  the  troops  of  a  foreign 
prince  allowed  to  pass  through  the  domin- 
ions and  over  the  national  sliips  of  war  of 
a  friendly  power,  entering  a  port  open  for 
their  reception.^* 

Again  it  is  generally  admitted  that  a  limit 
is  set  upon  the  right  of  the  territorial  sov- 
ereign to  deal  with  the  foreigner  resident 

^'  Cranch's  Reports,  p.  116. 


The  Custom  of  Civilized  Nations     39 

within  his  dominions.  The  resident  alien 
may  be  made  amenable  to  taxation,  he  may 
be  called  upon  to  perform  police  duties,  but 
he  cannot  rightly  be  embodied  in  the  naval 
or  military  forces  of  the  State."  Hence  the 
many  conventions  made  between  the  En- 
tente States  during  the  present  war  for  the 
enhstment  of  aUied  aliens.  Even  Germany 
in  the  early  days  of  the  war  recognized  this. 
A  Rhodes  scholar  at  Oxford,  of  German 
ancestors  but  American  citizenship,  hap- 
pened to  be  spending  his  vacation  in  Ger- 
many when  the  war  broke  out.  He  tells  of 
the  following  experiences.  He  spoke  Ger- 
man fluently,  and  was  immediately  seized 
for  service  by  the  military  who  believed  him 
a  German,  and  would  not  credit  his  protes- 
tations that  he  was  an  American.     As  he 

"  T.  A,  Walker,  Manual  of  Public  International  Law,  Pt.  ii., 
ch.  3,  §  19  (1). 


40  A  Society  of  States 

was  being  marched  through  the  streets  of 
a  German  town,  his  imagination  still  vivid 
and  his  mind  not  yet  tutored  to  the  circum- 
stances of  war,  he  believed  that  he  was  on 
the  way  to  the  Eastern  front;  he  saw  the 
American  Consulate,  broke  the  ranks  and 
took  refuge.  On  establishing  his  nationahty 
he  was  assisted  to  leave  the  country.  Simi- 
larly during  the  American  Civil  War 
the  British  Government  addressed  several 
effective  remonstrances  against  the  com- 
pulsory enrolment  of  British  citizens  resi- 
dent in  the  United  States  who  had  not  been 
naturalized. 

There  are  limitations  also  upon  the  State's 
jurisdiction  over  ships  under  its  flag. 
Piracy,  that  is,  acts  of  violence  done  by  a 
body  of  men  acting  independentlj^  of  any 
politically  organized  society,""  is  justiciable 

«<»Hall.  op.  cit.,  Pt.  ii..  ch.  6,  p.  71. 


The  Custom  of  Civilized  Nations     41 

anywhere.  And  in  wartime  the  neutral  who 
wishes  to  trade  overseas  with  a  belligerent 
must  submit  to  infringements  of  his  sov- 
ereign rights  wliich  have  been  described"^  as 
"onerous  and  humiliating"  and  which  are 
certainly  extensive.  He  must  suffer  his 
merchant  vessels  to  be  visited  and  searched. 
If  they  try  to  enter  a  blockaded  port  he 
cannot  complain  if  they  are  condemned  as 
prize.  If  a  neutral  merchantman  carries 
a  cargo  of  goods  destined  for  a  belligerent 
even  to  the  port  of  another  neutral,  and 
those  goods  have  been  declared  contraband 
by  the  other  belhgerent  (for  it  is  the  bel- 
ligerent who  decides  what  shall  and  what 
shall  not  be  contraband),  ship  and  cargo, 
if  captured,  will  be  adjudicated  upon  by  the 
Courts  of  the  aggrieved  belligerent,  and  in 
some    cases    condemned,    and    the    neutral 

^^  Brailsford,  A  League  of  Nations,  ch.  7,  p.  206. 


42  A  Society  of  States 

State  must  watch  its  citizen  lose  ship  and 
cargo  without  just  cause  of  protest. 

§4.    THE   MEANING  OF  INDEPENDENCE 

We  now  must  try  to  find  exactly  what 
we  mean  when  we  speak  of  States  as  in- 
dependent. Clearly  we  do  not  mean  that 
the  Sovereign  State  lives  in  isolation.  It 
is  no  truer  of  the  State  than  the  individual 
that 

"In  the  sea  of  life  enisled. 
With  echoing  straits  between  us  thrown, 
Dotting  the  shoreless  watery  wild, 
We  mortal  millions  live  alone." 

In  1711  that  characteristic  Englishman, 
Joseph  Addison,  wrote  after  a  visit  to  the 
Royal  Exchange:  "Nature  seems  to  have 
taken  a  particular  care  to  discriminate  her 
blessings  among  the  different  regions  of  the 
\;'orld,  with  an  eve  to  this  mutual  intercourse 


The  Custom  of  Civilized  Nations    43 

and  traffic  among  mankind,  that  the  natives 
of  the  several  parts  of  the  globe  might  have 
a  kind  of  dependence  upon  one  another  and 
be  united  together  by  their  common  inter- 
est."" Long  before  1914  it  would  have  been 
truer  to  say  of  the  members  of  the  family 
of  nations  that  they  were  m^^r-dependent 
than  that  they  were  mdependent  in  the 
ordinary  sense  of  the  word.  Full  inde- 
pendence is  inconsistent  with  relations.  A 
fortiori  it  is  inconsistent  with  the  existence 
of  law.  A  man  who  is  a  law  to  himself  can- 
not be  said  to  live  under  the  law.  There 
can  be  no  need  for  international  law  if  there 
are  no  international  relations. 

John  Austin  described"  an  independent 
political  society  as  one  which  was  not  merely 
a  limb  or  member  of  another  political  so- 


"  The  Spectafor.  No.  69. 
23  Loc.  (dt.,  p.  227. 


44  A  Society  of  States 

ciety.  Hall  defines"*  independence  as  "the 
power  of  giving  effect  to  the  decisions  of  a 
will  wliich  is  free,  in  so  far  as  absence  of 
restraint  by  other  persons  is  concerned," 
wliilst  Halleck  found"^  the  essential  quah- 
ties  of  independence  m  "the  right  of  will 
and  judgment  and  the  full  capacity  to  con- 
tract obligations."  But  the  definitions  of 
the  lawj^ers  help  us  here  even  less  than  in 
the  case  of  sovereignty. 

§5.    THE   "rights"   of  INDEPENDENCE 

If  we  wish  to  discover  and  understand  the 
meaning  of  independence,  we  must  examine 
rather  the  rights  which  are  supposed  to  at- 
tach to  a  State  because  of  its  independence; 
for  "independence  does  not  at  all  mean 
boundless  liberty  of  action. ^"^    Every  State," 

"  Op.  cit.,  Pt.  i.,  ch.  2,  §  10. 

"  Op.  cit..  vol.  i.,  ch.  3.  p.  77. 

26  Oppeolieim,  International  Law,  Pt.  i.,  ch.  1,  §  97,  p.  149. 


The  Custom  of  Civilized  Nations    45 

says  Wheaton,"  "has  certain  sovereign 
rights  to  which  it  is  entitled  as  an  indepen- 
dent moral  being."  These  rights  may  be 
summarized  as  follows: 

( 1 )  The  right  to  self-preservation.  This 
includes  the  right  of  self-defence,  and  that 
defence  may  take  the  form  of  preventing 
as  well  as  of  repelling  an  attack.  As  a 
means  to  self-preservation  a  State  has  the 
right  to  erect  fortifications,  levy  troops,  and 
maintain  naval  forces,  uncontrolled,  and  the 
exclusive  right  to  use  troops  in  its  own  ter- 
ritory. 

(2)  The  right  to  increase  its  national 
dominions,  wealth,  population,  and  power 
by  all  innocent  and  lawfuP^  means. 

"  Op.  ciL,  p.  89.  Wheaton  treats  as  distinct  the  conditional 
international  rights  to  which  sovereign  States  are  entitled,  i.e., 
those  to  which  they  are  only  entitled  under  particular  circum- 
stances, for  example,  in  a  state  of  war.  The  distinction  is  unreal, 
for  the  rights  of  war  flow  from  the  right  of  self-preservation. 

''^This  clearly  makes  the  statement  as  meaningless  as  it  is 
safe:  it  begs  the  whole  question. 


46  A  Society  of  States 

(3)  The  right  to  monopohze  its  own 
trade  and  to  grant  special  privileges  to  other 
nations. 

(4)  The  right  to  establish,  alter  or  abolish 
its  own  internal  constitution  and  to  choose 
its  rulers  as  well  as  its  form  of  government. 

(5)  The  right  to  prohibit  the  introduc- 
tion of  foreigners  on  its  territory,  and  to 
expel  them  ^vhen  they  are  there. 

(6)  The  right  to  territorial  inviolability. 

(7)  The  right  to  make  treaties  or  alli- 
ances with  whom  it  will. 

And  in  addition  the  so-called  rights  of 
sovereignty  and  of  equality  may  with  equal 
propriety  be  treated  as  rights  of  inde- 
pendence. We  have  already  seen^"  that  in 
Austin  the  notion  of  an  Independent  Politi- 
cal Society  and  the  notion  of  sovereignty 
are  interdependent,  and  that  Wheaton  de- 

29  Above,  p.  34. 


The  Custom  of  Civilized  Nations     47 

fines  external  sovereignty  as  independence. 
How  difficult  it  is  to  distinguish  between 
sovereignty  and  independence  or  to  think 
clearly  about  either  will  be  realized  by  any- 
one who  cares  to  take  the  trouble  to  compare 
the  statements  made  by  Halleck  on  this 
subject.  We  are  first  told  that  "the  mere 
fact  of  dejiendence  does  not  prevent  a  State 
from  being  regarded  in  international  law 
as  a  separate  and  distinct  sovereignty,  cap- 
able of  enjoying  the  rights  and  incurring 
the  obligations  incident  to  that  condition,"^" 
and  that  the  sovereignty  of  a  particular 
State  is  not  necessarily  destroyed  either  by 
mere  nominal  obedience  to  the  commands  of 
others  or  even  by  an  habitual  influence  ex- 
ercised by  otliers  over  its  coimcils.^^  But  if 
by  political  organization  or  treaties  of  un- 


2"  International  Law  (4th  Edition),  vol.  i.,  ch.  3,  p.  71. 
31  Ibid.,  p.  72. 


48  A  Society  of  States 

equal  alliance  or  protection,  a  State  has 
parted  with  its  rights  of  negotiation  and 
treaty  and  has  lost  its  essential  attributes  of 
independence,  it  can  no  longer  be  regarded 
as  a  sovereign  State.^"  Yet  we  are  a  little 
later  informed  that  "the  very  fact  of  the 
sovereignty"  of  the  sovereign  State  "implies 
its  independence  of  the  control  of  any  other 
State"  ;^^  that  by  reason  of  its  independence 
it  may  exercise  all  rights  incident  to  its  sov- 
ereignty as  a  separate,  distinct,  and  inde- 
pendent society;  and  that  these  rights  are 
limited  only  by  the  Law  of  Nature  and  the 
existence  of  similar  rights  in  others.  Inde- 
pendence is  however  free  from  the  historical 
connections  which  still  cling  to  the  word 
sovereignty^  and  so  we  find  that  Austin 
speaks  of  the  independence  of  the  nation 
and  of  the  sovereignty  of  the  Government/* 

"76id.,  p.  74.      '^Ibid.,  ch.  4,  p.  100.     ^^Cf.  loc.  cit,  pp.  235,  204. 


The  Custom  of  Civilized  Nations     49 

It  is  difficult  to  see  how  restrictions  can 
be  imposed  upon  external  sovereignty 
which  are  not  also  restrictions  upon  inde- 
pendence. But  the  common  practice,  which 
I  have  followed,  is  to  associate  those  rights 
which  flow  directly  from  the  territorial 
character  of  sovereignty  and  the  allegiance 
due  to  the  Sovereign  with  sovereignty,  and 
to  treat  all  other  rights  as  flowing  from  in- 
dependence. The  dichotomy  is  not  however 
scientific. 

§6.    MODIFICATIONS  OF  THE  "rIGHTs"  OF 
INDEPENDENCE 

At  first  sight  the  State  to  whom  these 
rights  attach  would  indeed  seem  to  be  un- 
trammelled and  independent  almost  in  the 
fullest  sense.  But  theory  and  practice  have 
alike  hedged  about  these  rights  with  modi- 
fications   and    exceptions.      The    Grotian 


50  A  Society  of  States 

theory  of  International  Law  was  based 
upon  a  belief  in  the  existence  of  a  Law  of 
Nature,  and  Grotius  himself  denied  to  the 
sovereign  the  right  to  do  acts  rejDugnant  to 
the  Law  of  Nature  or  the  Law  of  God. 
For  Grotius  recognized  that  his  system  was 
a  compound  of  law  and  ethics.  Even  his 
predecessor,  Bodin,  who  published  his 
famous  book  in  1576  and  was  an  extreme  ad- 
vocate of  the  claims  of  the  sovereign,  plac- 
ing him  above  all  law,  made  him  vaguely 
subject  to  the  Law  of  God  and  Nature,  and 
said  that  he  must  respect  all  rights  of 
property  and  freedom  and  observe  his  con- 
tracts. 

When  belief  in  the  Law  of  Nature  died 
away,  the  Grotian  theory  of  the  sovereign 
State  would  at  once  have  spelled  anarchy 
unless  some  other  over-riding  authority  had 
been  put  in  its  ])\'dCQ.     So  we  find  some 


The  Custom  of  Civilized  Nations     51 

writers  limiting  the  rights  of  sovereignty  by 
the  higher  rights  of  humanity,  others  by  the 
moral  sense  of  mankind,  yet  others  by  the 
dictates  of  conscience.  The  rules  imposing 
limitations  upon  independence  were  moral 
rules,  not  legal  rules.  But  the  sense  of 
civilized  communities  and  the  need  of  inter- 
course did  in  effect  impose  some  fetters  upon 
the  complete  freedom  of  sovereign  States. 
Private  International  Law  reconciles  the 
so-called  rights  of  sovereignty  where  con- 
flict arises :  Pubhc  International  Law  partly 
consists  of  an  endeavour  to  govern  the  con- 
flict of  the  rights  of  independence.  The 
unfettered  independence  of  a  pov»'crful 
State  would  otherwise  have  imperilled  the 
life  of  all  other  States.  And  so  gradually 
there  was  growing  the  recognition  of  a  set 
of  rights  in  other  States  opposed  to  the 
rights  of  independence.     The  logic  of  facts 


52  A  Society  of  States 

was  becoming  too  much  for  the  crudity  of 
theory. 

(a)   Intervention 

The  most  conspicuous  example  of  the 
violation  of  the  rights  of  independence  is 
when  one  sovereign  State  intervenes  in  the 
affairs  of  another  sovereign  State.  But  in- 
tervention is  used  to  cover  two  very  different 
kinds  of  action.  It  is  more  strictly  used 
when  one  State  intervenes  in  the  internal 
affairs  of  another,  as  for  example  by  action 
in  favour  of  a  particular  party  in  the  State. 
It  is  also,  though  less  accurately,  used  to 
cover  the  case  in  which  a  State  interferes  in 
favour  of  a  particular  State  against  other 
States.  In  the  latter  case  intervention  is 
the  reverse  of  which  independence  is  the  ob- 
verse. The  discussion  of  this  topic  by 
statesmen  and  publicists  and  the  endeavours 


The  Custom  of  Civilized  Nations    53 

of  international  lawyers  to  formulate  legal 
rules  to  cover  it  are  an  admission  of  the  in- 
adequacy of  the  theory  of  the  sovereign  in- 
dependent State.  For  if  States  be  fully 
sovereign  and  independent,  intervention  is, 
as  was  alleged  bj^  "Historicus""^^  in  a  famous 
phrase,  "a  high  act  of  policy  above  and  be- 
yond the  domain  of  law." 

Attempts  have  been  made  in  the  past  to 
find  a  legal  justification  for  intervention  on 
many  grounds;  most  of  them  have  been 
eventually  rejected  as  insufficient  by  some- 
thing approaching  the  general  opinion  of 
publicists.  Intervention  has,  for  example, 
often  been  justified  on  the  ground  of  the 
necessity  of  maintaining  the  Balance  of 
Power^" — a  principle  enshrined  in  the  Treaty 

^°  Sir  W.  Harcourt,  Letters  on  Some  Questions  of  International 
Law,  I. 

^^  The  motive  behind  the  doctrine  of  the  Balance  of  Power 
was  the  desire  to  render  possible  the  observance  of  moral  rela- 


54  A  Society  of  States 

of  Utrecht  after  the  War  of  the  Spanish 
Succession.  It  has  been  justified  on  the 
grounds  of  humanity,  as,  for  example,  for 
the  purpose  of  ]3rotecting  the  Armenian  from 
the  brutahties  of  the  Turk.  In  neither  case 
has  the  opinion  of  pubUcists  approved  the 
claim.  But  in  spite  of  the  difficulty  in  find- 
ing a  firm  juridical  foundation  for  inter- 
vention, writers  have  generally  admitted 
that  intervention  is  justified  if  it  be  under- 
taken for  the  purpose  of  self-preservation 
from  a  direct,  immediate,  and  serious 
danger. 

Other  writers,  more  advanced,  extended 


tions  in  place  of  the  naked  exercise  of  power  consequent  on  an 
unbalanced  aggregation  of  States.  This  theory  might  perhaps 
be  conceived  as  a  forerunner  of  a  League  of  Nations — the  two 
equipoised  leagues  rendering  possible  (as  long  as  the  balance 
was  maintained)  fair  practice  as  between  all  the  members  of 
the  two  leagues.  The  present  war,  has  taught  us,  however, 
that  the  doctrine  of  the  balance  of  power  is  not  a  real  or  per- 
manent solution  of  the  problem  presented  by  international 
relations. 


The  Custom  of  Civilized  Nations     55 

the  justification  of  intervention  to  cases  in 
which  the  preservation  of  the  social  life  of 
the  family  of  nations  was  threatened.  "If 
a  powerful  State,"  Dr.  Lawrence  writes," 
frequently  endeavours  to  impose  its  Avill  on 
others,  and  becomes  an  arrogant  dictator 
when  it  ought  to  be  content  with  a  fair  share 
of  influence  and  leadership,  those  who  find 
their  remonstrances  disregarded  and  their 
rights  ignored  perform  a  valuable  service 
to  the  whole  community  when  they  resort 
to  force  in  order  to  reduce  the  aggressor  to 
its  proper  position."  States  may  appoint 
themselves  as  special  constables.  We  may 
interfere  to  prevent  the  burglar  from  pil- 
laging another's  house  no  less  than  our  own. 
On  some  such  grounds  as  this  the  actions 
of  the  European  Concert  were  explained — 


^''  Principles   of   International   Law,    p.    133.     Cf.    Westlake, 
International  Law:  Peace,  ch.  13,  p.  317. 


56  A  Society  of  States 

although  it  was  the  small  offender  that  the 
Concert  restrained. 

Intervention  in  the  internal  affairs  of 
another  State  has  also  frequently  been  justi- 
fied in  the  past  on  grounds  since  held  to  be 
wholly  insufficient.  Sometimes  for  the  pur- 
pose of  securing  dynastic  succession,  some- 
times for  the  purpose  of  maintaining  a 
particular  system  of  government.  It  was 
with  the  latter  object  that  the  Holy  Alli- 
ance was  formed ;  it  was  because  the  English 
govermnent  of  the  day  disapproved  of  that 
object  that  they  held  aloof  from  that 
alliance. 

In  two  cases  it  has  however  been  held 
justifiable.  First,  when  a  government  at- 
tacks the  peace,  external  or  internal,  of 
foreign  countries,  or  when  its  avowed  policy 
amounts  to  such  a  threat.  On  this  ground 
the  Great  Powers  justlj^  excluded  Napoleon 


The  Custom  of  Civilized  Nations    57 

from  the  throne  of  France.^^  Secondly, 
"wlien  a  country  has  fallen  into  such  a  con- 
dition of  anarchy  as  unavoidably  to  disturb 
the  peace,  external  or  internal,  of  its  neigh- 
bours, whatever  the  conduct  or  policy  of  its 
government  maj'^  be  in  that  respect."^'' 
The  Entente  intervention  in  Russia  can  be 
justified  under  this  head.*** 

The  right  of  intervention  in  the  internal 
affairs  of  another  State,  so  far  as  it  is  ad- 
missible, qualifies  in  particular  the  fourth 
of  the  rights  of  independence — the  right  of 
a  State  to  determine  its  own  form  of  gov- 
erimient.  The  right  of  intervention  in  ex- 
ternal affairs  puts  a  practical  limitation 
upon  all  the  rights  of  sovereignty. 

38  By  a  Convention  of  20th  November,  1815. 

39  Westlake,  op.  cit,  ch.  13,  p.  318. 

^0  Mr.  Asquith,  however,  on  27th  September,  1918,  justiGed  the 
intervention  in  Russia,  first,  as  an  intervention  to  end  an  inter- 
vention, secondly,  as  an  intervention  on  humanitarian  grounds 
to  prevent  cruelty  and  tyranny. 


58  A  Society  of  States 

{b)   Other  Modifications 

There  are  in  addition  special  limitations 
upon  each  of  the  rights  which  we  have 
spoken  of  as  attaching  to  independence. 

Even  the  right  of  self-preservation  is  not 
ahsolute.  Civilized  States  do  not  claim  the 
right  to  kill  their  prisoners  even  when  there 
is  a  shortage  of  food  for  their  own  armies; 
nor  do  they  claim  the  right  to  screen  their 
troops  from  the  enemy  fire  with  women  and 
children.  When  they  do  these  things,  they 
deny  the  fact,  not  the  illegality.  The  Regula- 
tions for  War  on  Land  made  at  The  Hague 
in  1907  state  expressly  that  "helligerents  do 
not  possess  an  unlimited  right  as  to  the 
choice  of  means  of  injuring  the  enemy. "*^ 
There  are  limitations  upon  the  means  of 
destruction   that   may   be   employed,    upon 

"  Art.  22. 


The  Custom  of  Civilized  Nations     59 

the  right  of  devastating  the  enemy's  coun- 
try, and  upon  the  use  of  deceit  and  treach- 
ery.    Everyone  knows  that  poisoned  arms 
are  not  to  be  used  in  civihzed  warfare,  and 
that  assassination  is  not  a  legitimate  method 
of  inflicting  injury  upon  the  enemy's  cause. 
Westlake,  one  of  the  greatest  of  EngUsh 
international   lawyers,   went   even   fiu'ther: 
for  he  stated  that  the  right  of  self-preserva- 
tion "does  not  permit  us  to  ward  off  danger 
from    ourselves    by    transferring    it    to    an 
innocent  person."*^     A  single  negative  ex- 
ample invalidates  a  definition.    If  it  be  true 
that  a  State  may  not  safeguard  its  State- 
existence  at  the  expense  of  a  third  State,  it 
is  not  true  to  say  without  qualification  that 
a    State    has    an    absolute    right    of    self- 
preservation. 

^2  Chapters  on  International  Law,  ch.  8;    International  Law: 
Peace,  ch.  13,  p.  310. 


60  A  Society  of  States 

And,  indeed,  to  admit  the  unlimited  right 
of  self-preservation,  as  do  the  Germans  and 
too  many  writers  of  other  nationalities,''^  is 
to  strike  at  the  roots  of  law  between  nations. 
In  the  cradle  of  legal  beginnings  we  find 
the  State  inducing  the  \dctims  of  wrong  to 
submit  their  grievances  to  the  arbitrament 
of  the  State;  it  is  not  until  self -redress  is 
strictly  limited  within  the  bounds  set  for  it 
by  the  State,  and  self-defence  is  itself  given 
a  juridical  recognition  and  definition  that 
law  can  be  said  to  begin.  The  unlimited 
right  of  self-preservation  is  "the  tiger- 
right"  given  by  the  "law"  of  the  jungle  and 
expounded  by  Huxley  with  eloquence  in  his 
essay  on  Natural  and  Political  RigJits.^*  A 
tiger  has  the  right  to  do  anything  to  live; 
he   is   charged   with   his   own   preservation 

*'  E.g.,  Rivier,  Principes  du  Droit  des  Gens,  vol.  i.,  Bk.  iv., 
ch.  1.  §  19,  p.  25C. 

**  Method  and  Results,  pp.  336,  sq. 


The  Custom  of  Civilized  Nations     61 

under  penalty  of  death.  "Nature,  red  in 
tooth  and  claw  with  ravin,  is  the  realm  of 
'tiger-rights.'  Her  'laws'  are  simply  state- 
ments of  cruel  facts;  her  rights  are  simply 
brutal  powers.  To  import  moral  rights  of 
freedom  or  equality  into  this  sphere  is 
meaningless."^^  For  these  laws  of  Nature 
are  the  facts  which  govern  the  existence  of 
an  irrational  creation,  and  something  very 
different  from  that  ideal  code — the  Law  of 
Nature — into  the  framework  of  which 
Grotius  worked  his  Law  of  Nations.  If  we 
believe  that  self-preservation  is  the  ultimate 
criterion  of  right  and  wrong,  we  are  driven 
to  the  position  of  Machiavelli*'^  that  a  "prince 
camiot  observe  all  those  things  which  are 
considered  good  in  men,  being  often  obliged, 
in  order  to  maintain  the  State,  to  act  against 

**  Ernest  Barker,  op.  cit.,  p.  134.     Compare  Hobbe's  descrip- 
tion of  man  in  a  state  of  nature:  supra,  p.  34. 
*'  he.  cit. 


62  A  Society  of  States 

faith,  against  charity,  against  humanity,  and 
against  religion." 

It  would  seem  also  that  the  good  sense  of 
the  civilized  world  has  imposed  some  limita- 
tions upon  the  right  of  sovereign  States  to 
exclude  foreigners  from  its  territory.  It  is 
true  that  in  the  arbitration  between  Great 
Britain  and  Belgium  over  the  expulsion  of 
Mr.  Ben  Tillett  from  the  latter  country, 
M.  Desjardins,  the  arbitrator,  held  that  "the 
right  of  a  State  to  exclude  from  its  territory 
foreigners  when  their  dealings  or  presence 
appears  to  comj^romise  its  security  cannot 
be  contested,"  and  that  "the  State  in  the 
.plenitude  of  its  sovereignty  judges  the  scope 
of  the  acts  which  lead  to  this  prohibition."*^ 
But  that  this  right  can  be  involved  only  if 
the  foreigner  is  considered  dangerous  to 
public  order  or  for  considerations  of  a  high 

*''  Parliamentary  Papers,  1899,  No.  46. 


The  Custom  of  Civilized  Nations     63 

political  character  was  found  hy  the  umpire 
in  the  later  case  of  Paquet  before  the  Bel- 
gian-Venezuelan Mixed  Claims  Commission 
1903.'' 

The  right  of  territorial  inviolability 
(which  is  better  but  is  not  usually  treated 
as  a  right  of  sovereignty  rather  than  of 
independence)  in  one  State  is  subordinate 
to  the  right  of  self-preservation  in  another 
State.  So  in  1838  when  a  body  of  Canadian 
insurgents  moored  the  Caroline  on  the 
United  States'  shore  of  the  Niagara  with 
a  view  to  an  attack  upon  Canada  it  is  gen- 
erally agreed  that  the  British  were  justified 
in  crossing  over  to  the  New  York  shore,  and 
sending  the  Caroline  adrift  down  the  falls 
of  Niagara.  It  was  only  necessary  for  the 
British  government  to  show  that  in  self-de- 
fence the  necessity  for  the  act  was  instant 

48  Venezuelan  Arbitration  of  1903  by  J.  II.  Ralston,  pp.  2G7-8. 


64  A  Society  of  States 

and  overwhelming  and  left  no  choice  of 
means. 

On  analogous  grounds  the  seizure  of  the 
Danish  fleet  by  Great  Britain  in  1807  in 
order  to  forestall  its  falling  into  the  hands 
of  Napoleon  and  Alexander  may  well  be 
justified,  although  Continental  writers  are 
unfortunately  in  the  habit  of  condemning  the 
British  action  in  this  case. 

Some  jurists  of  repute  speak  of  a  right  of 
peaceful  passage  over  another  State's  ter- 
ritory or  of  a  right  inherent  in  a  State  which 
possesses  only  the  upper  reaches  of  a 
navigable  river  to  navigate  the  lower 
reaches.  It  may  be  doubted  whether  the 
moral  claim  of  the  upper  riparian  owner  to 
such  right  of  passage  can  yet  be  called  a 
right,  but  there  is  no  doubt  that  interna- 
tional practice  and  opinion  are  alike  tending 


The  Custom  of  Civilized  Nations     65 

in  the  direction  of  the  creation  of  such  a 
right. 

{c)   The  Effect  of  Treaties 

But,  indeed,  if,  as  most  publicists  do,  we 
attach  a  binding  force  to  treaties,  that  which 
we  have  numbered  the  seventh  of  the  rights 
of  independence — the  right  of  the  State  to 
make  treaties  or  alliances  with  whom  it  will 
— imposes  a  qualification  of  almost  unlim- 
ited application  upon  the  other  so-called 
rights.  France  limited  her  right  of  self- 
defence  when  by  Article  9  of  the  Treaty  of 
Utrecht  she  engaged  to  demolish  the  forti- 
fications and  to  fill  up  the  fort  of  Dunkirk, 
and  remained  bound  by  these  provisions 
(which  were  substantially  renewed  in  the 
Treaty  of  Aix-la-Chapelle  in  1748)  imtil 
the  Treaty  of  Versailles  in  1783.  Prussia 
limited  her  right  of  self-defence  when  in 


66  A  Society  of  States 

1808  she  gave  an  undertaking  to  Naj)oleon 
not  to  maintain  in  arms  more  than  42,000 
men.  Neither  of  these  provisions  proved 
to  be  of  long  endm-ance;  neither  was  a  suc- 
cess ;  but  neither  was  deemed  to  destroy  the 
sovereignty  or  independence  of  the  State 
which  entered  into  the  self-denying  engage- 
ment. So,  also,  difficult  as  it  is  to  formulate 
a  legal  principle  for  the  justification  of  in- 
tervention on  other  grounds,  there  is  no 
difficulty  where  the  right  to  intervene  is 
given  by  treaty  or  convention.*''  Interven- 
tion, then,  is  for  once  not  "a  high  act  of 
policy  above  and  beyond  the  domain  of 
law,"  but  an  act  under  the  law.  For  a 
voluntary   derogation   from   sovereignty   is 

*^  Philliraore  (On  International  Law,  vol.  i.,  §  399)  however 
(followed  by  Ilalleck,  International  Laiv,  cc.  4  and  IG,  vol.  i., 
pp.  lOG,  5G2)  holds  the  amazing  view  that  wars  of  intervention 
must  be  justifled  or  condemned  without  reference  to  treaty 
obligations;  for,  if  wrong  in  themselves,  the  stipulations  of  a 
treaty  cannot  make  them  right. 


The  Custom  of  Civilized  Nations     67 

not  held  to  impair  sovereignty.  Belgium 
was  a  party  to  the  treaty  by  which  she  was 
neutralized;  although  by  that  act  her  power 
and  her  freedom  to  make  war  were  strictly 
limited,  yet,  because  she  was  a  party  herself 
to  the  limitations  imposed  upon  her,  she  was 
expressly  recognized  in  the  Treaty  and  has 
since  always  been  recognized  in  practice  as 
an  independent  member  of  the  family  of 
nations."^" 

Again,  every  State  that  enters  into  a 
treaty  of  alliance  with  another  State  to  a 
greater  or  less  degree  surrenders  its  free- 

''°  It  may  be  otherwise  in  the  case  of  the  Grand  Duchy  of 
Luxemburg,  which  was  not  a  party  to  its  own  neutralization. 
(Cakes  and  Mowath,  Great  European  Treaties  of  the  Nineteenth 
Century,  ch.  9.).  In  September,  1918,  a  demand  arose  in  the 
Grand  Duchy  for  the  revision  of  the  Constitution,  embodying 
a  claim  for  the  adoption  in  the  Constitution  of  the  principle 
that  all  powers  emanate  from  the  nation.  The  local  lawyers 
were  hostile  to  any  proclamation  of  the  sovereignty  of  the  people 
on  the  ground  that  Luxemburg  was  not  neutral  by  the  will  of 
the  people  but  by  the  will  of  the  European  Powers.  See  The 
Law  Times,  vol.  145,  p.  367. 


68  A  Society  of  States 

dom  of  action  in  a  sj)here  where  freedom  of 
action  would  but  for  such  alHance  be  essen- 
tial to  its  independence.  The  Powers  which 
attended  the  Hague  Conferences  did  not 
cease  to  be  independent  when  they  ratified 
Treaties  which  imposed  additional  restric- 
tions upon  themselves  in  limiting  the  means 
they  might  use  in  war  to  reduce  their 
enemies  to  submission. 

Stated  in  another  way,  we  may  sa^'-  that 
all  the  other  rights  of  independence  must 
be  read  as  subject  to  this  right. 

§7.    THE  MEANING  OF  EQUALITY 

It  is  clear,  then,  that  independence  no  less 
than  sovereignty  does  not  bear  quite  its  face- 
meaning  for  the  international  lawyer.  It  is 
now  desirable  to  fathom,  if  possible,  the 
meaning  which  he  attaches  to  equality.  For 
sovereign  independent  States  are  also  equal 


The  Custom  of  Civilized  Nations     69 

States.  "In  the  whole  range  of  the  matter 
discussed  in  Public  International  Law," 
wrote  Chancellor  Kent^'  in  1826,  "no 
proposition  has  been  more  explicitly  an- 
nounced or  more  implicity  accepted  than 
this :  that  nations  are  equal  in  respect  to  each 
other,  and  entitled  to  claim  equal  considera- 
tion for  their  rights,  whatever  their  relative 
dimensions  or  strength  may  be,  or  however 
they  may  differ  in  Government,  religion,  or 
manners." 

Yet  in  what  did  that  equality  consist? 
Not  in  political  power;  for,  even  before  the 
European  Concert  became  a  recognized 
phenomenon  in  European  politics  or  the 
Great  Powers  co-operated  for  the  arrange- 
ment of  the  destinies  of  the  smaller  powers, 
it  was  clear  that  a  weak  power  could  not 


^1  Commentaries  on   International  Laio   (Abdy's  edition),   ch. 
2.  p.  46. 


70  A  Society  of  States 

deal  on  equal  terms  with  a  strong.  Treaties 
made  under  duress  are  no  less  binding  than 
those  made  in  free  consent:  else  no  treaty 
made  at  the  conclusion  of  a  victorious  war 
would  have  any  legal  significance.  Not  in 
legislative  power;  for  though  the  smaller 
States  may  in  a  very  real  sense  be  said  to 
have  done  much  to  help  the  growth  of 
International  Law — the  Germans  indeed 
speak  scornfully  of  it  as  the  creation  of  weak 
states, — the  content  of  that  law  has  been 
given  by  the  great  States.  Sea-law  is  made 
by  the  practice  of  the  great  maritime 
powers;  the  laws  of  war  are  the  rules  which 
the  great  military  powers  have  laid  down  for 
the  guidance  of  their  armies,  and  which  those 
armies  have  observed  in  the  field. 

It  has  been  claimed  that  modern  Interna- 
tional Law  sprang  fully  developed  from  the 
brain  of  a  Dutchman;  Belgians  and  Swiss, 


The  Custom  of  Civilized  Nations     71 

Brazilians  and  Argentines,  have  made  valu- 
able contributions  to  the  development  of  the 
science,  but  they  have  had  to  build  that 
science  in  accordance  with  the  facts  pre- 
sented to  them  by  the  conduct  and  practice 
of  England  and  France,  Prussia  and  Rus- 
sia, Austria  and  the  United  States. 

Vattel,  the  great  Swiss  jurist,  in  dis- 
cussing equality  saidr'"  "A  dwarf  is  as  much 
of  a  man  as  a  giant;  a  small  republic  is  no 
less  a  sovereign  State  than  the  most  power- 
ful kingdom."  Thus  far  we  can  agree;  for, 
in  fine,  the  equality  of  States  amounts  to 
no  more  than  this — that  each  sovereign  in- 
dependent State  is  equally  entitled  to  be 
called  a  separate  State.^^  It  does  not  mean 
that  each  State  is  equal  to  every  other. 

^^  Droit  dcs  Gens,  Prelim.,  §  18. 

''So  Westlake  says  (I  titer  national  Laic:  Peace,  ch.  13,  p. 
321)  that  "the  equaUty  of  sovereign  States  is  merely  their  inde- 
pendence under  a  different  name." 


72  A  Society  of  States 

The  doctrine  of  the  equahty  of  States 
came  from  the  appUcation  by  Grotius  to 
International  Law  of  the  principles  of 
Roman  Law.  States  were  held  bv  Grotius 
to  be  in  "a  state  of  nature."  It  followed 
that  States  being  in  their  dealings  with  other 
States  "in  a  state  of  nature"  could  not  plead 
privilege  of  rank  or  caste.  Similarly,  when 
individual  litigants  at  Rome  were  "in  a  state 
of  nature,"  that  is,  when  they  were  members 
of  a  different  political  communitj^,  the  par- 
ticular laAvs  of  their  own  community  as  to 
rank  or  class  did  not  apply,  and  they  were 
therefore  regarded  as  equal. 

§8.   THE   "rights"   of  EQUALITY 

In  order  to  ascertain  the  practical  con- 
clusions drawn  from  this  theory,  I  shall 
pursue  the  method  I  have  already  followed 
in  an  endeavour  to  fix  the  meaning  of  sov- 


The  Custom  of  Civilized  Nations    73 

ereignty  and  independence,  and  examine  the 
rights  which  are  supposed  to  flow  from  the 
generally  admitted  equality  of  States. 

These  rights  are  confined  to  matters  of 
ceremonial.  The  chief  is  the  right  to  send 
puhlic  ministers  to  any  other  sovereign 
State  with  whom  the  maintenance  of  rela- 
tions of  peace  and  amity  is  desired. 

But  this  generally  admitted  equality  is 
evidenced  in  other  ways:  every  State  is  en- 
titled to  make  use  of  its  own  language  in 
treaties  with  another  State;  and  so  punctili- 
ous was  the  regard  for  equality  amongst  the 
parties  to  the  Treaty  of  Vienna  that  the 
signatures  thereto  were  appended  in  alpha- 
betical order.  Hence  arose  also  the  practice 
of  the  alternat — a  diplomatic  device  by 
which  the  signatures  to  treaties  are  in  a 
different  order  in  different  copies.  Each 
sovereign  State  has  the  right  to  regulate  the 


74  A  Society  of  States 

maritime  ceremonial  to  be  observed  within 
its  own  jurisdiction,  and  where  the  extent 
of  that  jurisdiction  has  been  in  dispute 
maritime  ceremonials  have  often  been  made 
the  pretext  of  war.  In  1877  the  maritime 
powers  agreed  to  certain  international  rules 
to  give  effect  to  the  principles  that  all  sov- 
ereign States  with  respect  to  salutes  are 
equal. 

§9.    MODIFICATION  OF  THE  "rIGHTS"  OF 
EQUALITY 

In  discussing  the  rights  of  equality  we 
have  seen  that  they  are  for  the  most  part 
illusory.  Even  such  as  they  are  they  may 
be  modified  by  the  consent  implied  from 
constant  usage  or  by  the  express  voluntary 
agreement  of  one  State  with  another.  So 
the  Catholic  Powers  give  precedence  to  the 
Pope.  Royal  States  had  by  usage  prece- 
dence over  Republics,  and  Kmperors  used 


The  Custom  of  Civilized  Nations    75 

to  be  reckoned  as  of  more  aceount  than 
Kings.  If  equahty  was  the  rule  it  was 
surely  only  because  a  number  of  exceptions 
prove  the  rule! 

The  old  text-books  on  International  Law 
devote  a  large  space  to  the  consideration  of 
questions  of  ceremonial;  for  questions  of 
precedence  loomed  large  on  the  diplomatic 
horizon.  An  amusing  passage  in  Macaulay's 
History  of  England^*  gives  an  account  of 
the  contentions  for  pride  of  place  between 
the  plenipotentiaries  at  the  Congress  of 
Ryswick.  "The  chief  business  of  Harlay 
and  Kaunitz  was  to  watch  each  other's  legs. 
Neither  of  them  thought  it  consistent  with 
the  dignity  of  the  Crown  which  he  served  to 
advance  towards  the  other  faster  than  the 
other  advanced  towards  him.  If,  therefore, 
one  of  them  perceived  that  he  had  inad- 

"  Ch.  22  (Popular  edition,  p.  624). 


76  A  Society  of  States 

vertently  stepped  forward  too  quick,  he 
went  back  to  the  door  and  the  stately  minuet 
began  again."  And  history  records  many 
other  like  happenings. ^^ 

So  William  Penn,  the  Quaker,  when  in 
1693  he  laid  before  the  world  his  scheme  for 
a  League  of  Nations,  dared  not  omit^^  some 
provision  for  the  susceptibihties  of  equal 
sovereigns.  He  suggested  that  in  place  of 
session  of  the  Imperial  Diet  of  Europe  "to 
avoid  quarrel  for  precedency,  the  room  may 
be  round,  and  have  divers  doors  to  come  in 
and  go  out  at,  to  prevent  exceptions." 

§10.   THE  MEANING  OF  "llIGHTs" 

These  then  are  the  rights  which  jurists 
assert  flow  from  the  sovereignty,  the  inde- 
pendence, and  the  equality  of  States.    There 

^^  See  also  tlie  entertaining  fourth  chapter  in  Sir  Ernest  Satow's 
Guide  to  Diplomatic  Practice. 

■■*  The  Present  and  Future  Peace  of  Europe,  §  8. 


The  Custom  of  Civilized  Nations    77 

is  an  old  maxim,  Ubi  jus  ibi  remedium: 
there  is  no  right  without  a  remedy;  or  as 
Coke  quaintly  said:  "Want  of  remedy  and 
want  of  right  is  all  one.""  What  remedy, 
then,  does  International  Law  provide  for 
the  violation  of  these  rights?  There  is 
diplomatic  protest;  and,  if  that  fail,  there 
is  war.  But  w^ar  is  a  "remedy"  which  is 
open  to  the  evil-doer  as  well  as  to  the  in- 
jured party.  Recourse  may  be  had  to  war 
independently  of  right  and  WTong.  The 
scales  of  war  are  not  weighted  on  the  side 
of  justice.  Grotius'^  demanded  of  neutrals 
that  "they  should  do  nothing  by  which  the 
upholder  of  a  wicked  cause  might  become 
stronger  or  by  which  the  movements  of  a 
just  belligerent  might  be  hampered." 
Christian  Wolff,   in   1749,  went   further.'" 

5^  Coke  or  Littleton,  95  b. 

^^  Ubi  supra,  iii.,  17,  3. 

69  De  Jure  Belli  Gentium,  ch.  6,  §§  656,  674. 


78  A  Society  of  States 

He  and  his  followers  held  that  it  was  the 
duty  of  States  to  support  that  power  whose 
war  was  just.  Had  the  theories  of  Grothis 
or  Wolff  determined  the  practice  of  neutral 
States,  war  might  have  acquired  something 
of  the  character  of  a  legal  remedy.  But 
practice  did  not  follow  precept.  Neutrality 
tended  ever  more  to  predicate  complete  in- 
difference and  an  entire  aloofness  from  the 
moral  issues  raised  between  two  belhgerents. 
The  reason  is  not  far  to  seek.  Every  coun- 
try that  goes  to  war  claims  that  justice  is  on 
its  side,  and  in  the  absence  of  an  objective 
test  which  is  independent  of  opinion  and 
makes  it  unnecessary  nicely  to  balance  the 
right  and  wrong  of  a  complicated  series  of 
facts,""   who   is   to   decide   with   whom   the 

^°  Such  an  objective  test  is  provided  by  schemes  for  a  League 
of  Nations;  for  if  one  State  commences  hostilities  against  another 
State  without  submitting  the  question  to  arbitration  or  to  the 
Council  of  Conciliation  the  question  of  "justice"  is  ipso  facto 
determined. 


The  Custom  of  Civilized  Nations    79 

justice  lies?  But,  though  easily  explained, 
the  modern  conception  of  neutrality  is  a 
terrible  indictment  of  modern  civilization ;  it 
has  been  not  altogether  unjustly  said  that 
"a  i)roclamation  of  neutrality  is  an  an- 
nouncement by  the  State  which  makes  it  of 
its  determination  to  let  ill  alone."*^^ 

Since,  then,  in  the  last  resort  it  has  been 
left  to  the  "irrational  and  doubtful  decision 
of  war,"  as  Erasmus  called  it,''"  to  vindicate 
the  sovereignty,  the  independence,  and  the 
equality  of  States,  and  since  the  scales  of 
war  are  weighted  heavily  on  the  side  of  the 
powerful  States,  sovereignty,  independence, 
and  equality,  even  in  the  limited  sense  given 

81  Lorlmer,  op,  cit.,  vol.  ii.,  p.  122.  Lorimer's  book  has  long 
suffered  from  an  undeserved  neglect.  For  years  the  two  hand- 
some volumes  have  been  obtainable  as  a  "remainder"  for  the 
ridiculous  sum  of  3s.  6d.  If  a  League  of  Nations  be  formed  it 
is  possible — in  spite  of  his  belief  in  the  Law  of  Nature — that  the 
stone  which  the  builders  rejected  will  become  the  head  of  the 
corner. 

*2  Complaint  of  Peace  (English  translation  (1917),  p.  54.) 


80  A  Society  of  States 

to  those  words  by  international  lawyers,  find 
a  place  only  in  the  text-books  and  not  in  the 
practice  of  Europe.  As  the  present  At- 
torney-General, Sir  F.  E.  Smith,  well  said, 
whilst  he  was  still  a  young  man,  "In  the 
rough  and  ready  practice  of  nations  suit 
in  forma  pauperis  is  not  a  hopeful  pro- 
cedure.'"^" The  rights  of  sovereignty,  inde- 
pendence, and  equality,  were  moral  rights, 
not  legal  rights — rights  without  a  remedy; 
from  which  fact  Lasson  draws  a  character- 
istically German  conclusion:  "If  things  on 
earth  are  to  be  made  better,  it  will  be  nec- 
essary in  the  first  place  to  rid  international 
relations  of  the  hypocritical  phrase  of  right 
and  of  the  sacrcdness  of  trcaties."^^  And 
perhaps  he  is  right  if  German  policy  remains 
unchanged. 

*'  Jnternational  Law  (1900),  p.  34. 

^^  Princip  und  Zukunft  des  VoUcerrechts,  p.  15. 


THE  LEAGUE  OF  NATIONS 


CHAPTER  III 

The  League  of  Nations 

WE  will  now  pass  from  an  examina- 
tion of  the  position  as  it  is  to-day 
to  a  contemplation  of  the  possible 
position  after  the  war.  We  can  only  ap- 
preciate the  extent  of  the  changes  involved 
in  this  respect  in  the  creation  of  a  League 
of  Nations  if  we  consider  how  far  the  world 
has  already  departed  from  the  full  implica- 
tions of  the  theory  of  the  sovereign  inde- 
pendent State,  how  far  the  modifications  of 
the  "rights"  have  deprived  the  "rights"  of 
any  real  substance.  If  we  do  this,  we  shall 
see  just  how  big  a  step  the  governments  of 
the  sovereign  independent  States  are  asked 

to  take  in  the  hope  of  thereby  enthroning 

83 


84  A  Society  of  States 

public  right  in  the  place  now  occupied  by 
public  anarchy. 

§1.   SOVEREIGNTY 

And  first  as  to  sovereignty.  We  have 
seen  that  according  to  the  theory  of  sov- 
ereignty the  sovereign  has  an  exclusive 
power  of  legislation  for  liis  own  dominions. 
But  a  development  of  comparatively  recent 
growth  has  an  interesting  bearing  on  this 
doctrine.  ,  :  ^V,' 

The  International  Unions,  of  which  there 
are  12  (e.g.,  the  Telegraph  Union,  the 
Postal  Union,  the  Office  of  Health,  con- 
stituted at  various  dates  between  1868  and 
1907),  were  almost  imperceptibly  begin- 
ning to  exercise  a  compelling  force  in  their 
own  sphere  over  the  freedom  of  action  of 
sovereign  States.  In  these  Unions  the  sov- 
ereignty of  the  member  State  is  left  un- 


The  League  of  Nations  85 

touched;  a  minority  can  resist  a  majority,  for 
unanimity  is  necessary  to  make  a  decision 
of  the  Union  binding;  no  rule  adopted  by 
the  Union  is  binding  on  the  citizens  of  any 
State  until  ratified  by  that  State,  and  the 
State  is  left  to  introduce  its  own  legislation 
to  give  effect  to  the  rules;  disputes  on  in- 
ternational administration  can  be  submitted 
to  the  international  bureaux  and  from  them 
can  be  referred  to  arbitration,  but  the  Union 
has  no  powers  to  enforce  its  decisions;  the 
members  of  the  Union  are  generally  free  to 
leave  the  Union.  Yet  it  is  impossible  in 
practice  for  the  State  to  ignore  the  author- 
ity of  the  Union,  and  Dr.  Bisschop  goes  so 
far  as  to  saj^^  that  these  conventions  have 
"undoubtedly  created  a  restriction  of  the 
sovereign  powers  of  each  member."  In  the 
case  of  most  of  the  Unions  that  statement 

^In  Problcvis  of  the  War  (Grotius  Society),  vol.  ii.,  p.  127. 


86  A  Society  of  States 

might  be  challenged,  but  in  the  case  of  the 
International  Sugar  Union  of  1902  it  would 
seem  that  a  real  restriction  was  imposed 
upon  the  sovereign  powers  of  the  members; 
for  the  Union  was  empowered  to  take  final 
executory  decisions  without  right  of  appeal.^ 
Such  things  go  to  justify  the  remark  of  an 
acute  and  independent  thinker^  that  "gov- 
ernments, if  they  are  not  continually  re- 
minded of  their  sacred  sovereignty,  tend  to 
act  as  though  it  mattered  very  little." 

In  England  and  America  we  may  observe 
another  illuminating  fact— the  recognition 
given  to  International  Law  in  the  municipal 
courts.  That  recognition  has  been  deemed 
to  be  consistent  with  the  undiminished  sov- 
ereignty of  the  State. 

When  Lord  Talbot  and  Lord  JNIansfield 

*  See  N.  Politis  in  the  Rcnic  de  Science  et  de  Legislation  Finan- 
cihres:  Jan.,  Feb.,  March,  1904. 

3  C.  Delisle  Burns,  The  World  of  States,  ch.  6,  p.  94. 


The  League  of  Nations  87 


"^O 


declared  that  "the  Law  of  Nations  in  its 
full  extent  was  part  of  the  Law  of  Eng- 
land,"* they  did  not  mean  that  England  was 
not  a  sovereign  State.  Sir  William  Scott, 
afterwards  Lord  Stowell,  sitting  in  the 
Prize  Court,  with  ripe  and  lofty  eloquence, 
said:  "I  trust  it  has  not  escaped  my  recol- 
lection for  one  moment  what  it  is  that  the 
duty  of  my  station  calls  for  from  me; 
namely  to  consider  myself  as  stationed  here, 
not  to  deliver  occasional  and  shifting  opin- 
ions to  serve  present  purposes  of  particular 
national  interest,  hut  to  administer  with  in- 
difference that  justice  which  the  law  of 
nations  holds  out  without  distinction  to  in- 
dependent States,  some  happening  to  he 
neutral  and  some  to  he  belligerent.  The 
seat  of  judicial  authority  is  indeed  locally 
here,  in  the  belligerent  country,  according 

<  Triquel  v.  Bath.  4  Burr.  2016. 


88  A  Society  of  States 

to  the  known  law  and  practice  of  nations: 
but  the  law  itself  has  no  locality.  It  is  the 
duty  of  the  person  who  sits  here  to  de- 
termine this  question  exactly  as  he  would 
determine  the  same  question  if  sitting  at 
Stockholm.'"^  Lord  Stowell  was  not  sound- 
ing the  knell  of  England  as  a  sovereign 
State.  Nor  was  the  late  Lord  Parker  writ- 
ing her  epitaph  when  he  gave  judgment  in 
the  case  of  the  Zamord^ — a  judgment  which 
did  much  to  establish  the  confidence  of 
neutrals  in  the  justice  of  the  British  Prize 
Courts  during  the  present  war.  Lord 
Parker  reaffirmed  Lord  Stowell's  pro- 
nouncement; the  law  which  the  Prize  Court 
administers  is  not  national  but  international 
law;^  for  in  a  Prize  Court  "rights  based  on 

6  The  Maria,  1  Rob.  340. 

"1910,  2  A.C.  91. 

*  It  is  otherwise  in  Continental  Prize  Courts:  see  Sir  Francis 
Pigott's  article  in  Problems  of  the  War  (Grotius  Society),  vol.  iii., 
pp.  Ill,  sq. 


The  League  of  Nations  89 

sovereignty  are  waived":  "A  Court  which 
administers  international  law  must  ascertain 
and  give  effect  to  a  law  which  is  not  laid 
down  by  any  particular  State,  but  originates 
in  the  practice  and  usage  long  obsen^ed  by 
civilized  nations  in  their  relations  towards 
each  other  or  in  express  international  agree- 
ment." In  the  same  way  in  municipal 
Courts  in  disputes  between  citizen  and  citi- 
zen recognition  is  given  to  the  legal  effect 
of  custom,  although  custom  is  not  laid  down 
by  the  sovereign  power. 

In  the  United  States  the  constitution  it- 
self by  Section  8  of  Article  1  gives  Congress 
the  power  to  punish  offences  against  the 
law  of  nations,  and  the  judges  have  as  in 
England  treated  international  law  as  part 
of  the  common  law  of  the  land.^ 

*  For  a  more  precise  account  of  this  matter  see  Picciotto's 
Relation  of  International  Law  to  the  Law  of  England  and  the 
United   States.    Mr.    Picciotto's    book    was    written,    however. 


90  A  Society  of  States 

For  England  and  America  at  any  rate  it 
ivould  be  no  great  stride  to  advance  from 
a  position  in  which  the  rights  of  sovereignty 
are  implicitly  waived  in  favour  of  a  usage 
which  England  may  have  had  no  part  in 
creating  to  an  express  waiver  in  favour  of 
laws  made  by  a  body  on  which  England  had 
her  proper  representation.  It  is  true  that 
the  implied  waiver  may  be  revoked;  if  the 
King  in  Parliament  were  to  make  an  Act 
contrary  to  international  law  the  Courts 
would  enforce  the  Act  and  not  international 
law.  But  there  are  few  Englishmen  who 
would  wish  such  an  Act  passed  into  law  and  it 
is  improbable  that  any  House  of  Commons 
would  commit  such  a  moral  blunder.  The 
loss  therefore  of  this  power  of  revocation  by 

before  the  judgments  in  the  Prize  Court  and  the  Privy  Council 
in  the  case  of  the  Zaviora  were  delivered.  He  has  probably 
therefore  slightly  modified  some  of  the  views  expressed  in  his 
careful  survey  of  a  difficult  question. 


4 
The  League  of  Nations  91 

converting  an  implied  into  an  explicit  waiver 
would  seem  to  be  a  formal  rather  than  a 
real  change. 

But  in  fact  no  recognized  scheme  for  a 
League  of  Nations  makes  any  such  demand 
upon  the  self-abnegation  of  the  sovereign 
State.  The  most  extreme  suggestion  is  that 
of  the  American  League  to  Enforce  Peace 
that  conferences  between  the  signatory 
Powers  shall  be  held  from  time  to  time  to 
formulate  and  codify  rules  of  International 
Law  which  unless  some  signatory  shall  sig- 
nify its  dissent  within  a  stated  period  shall 
thereafter  govern  in  the  decisions  of  the 
arbitral  tribimal  set  up  under  the  League. 
Even  the  scheme  of  the  Fabian  Society  only 
makes  the  rules  proposed  by  the  Interna- 
tional Council  binding  if  ratified.  Clearly 
in  this  there  is  nothing  to  disturb  the  ten- 


92  A  Society  of  States 

derest  susceptibilities  of  the  Continental 
nations. 

But  not  only  has  the  sovereign  State  ex- 
clusive legislative  but  also  exclusive  judicial 
powers  within  its  own  dominions,  and  over 
all  acts  done  therein. 

"The  sovereign,"  says  Grotius,^  "is  one 
whose  acts  are  not  under  the  power  of  any 
other  in  the  sense  that  they  can  be  rendered 
^'oid  by  the  decision  of  any  other  human 
will."  The  German  Lasson  with  most  other 
Germans  goes  further.  "A  State,"  he 
says,^°  "can  never  submit  to  a  judicial  deci- 
sion." The  world  has  not  accepted  this 
view,  but  it  has  been  generally  agreed  that 
the  scope  of  arbitration  excludes  questions 
involving  "national  independence,  vital  in- 
terests, and  national  honour."     Arbitration 

^loc.  ciL.  1,  3,  7. 

10  Princip  und  Zukunft  des  Volkcrrechts,  p.  23. 


The  League  of  Nations  93 

treaties  in  the  past  have  always  specifically 
excluded  these  questions,  and  yet  have  given 
no  definition  of  what  are  the  questions  that 
involve  "national  independence,  vital  inter- 
ests or  national  honour."  The  terms  are 
vague,"  and  almost  any  international  dis- 
pute by  a  State  which  so  wished  could  be 
held  to  involve  one  or  other  of  the  non- 
justiciable trinitj^  Fortunately  States  do 
not  in  modern  times  usually  wish  recourse 
to  war  when  a  settlement  can  be  arrived  at 
in  some  other  way.  During  the  nineteenth 
and  twentieth  centuries  many  questions 
which  might  have  been  held  to  fall  within 
the  ground  forbidden  to  arbitration  have 
been  peacefully  and  satisfactorily  settled  by 
that  means.  The  delimitations  of  terri- 
torial   boundaries    may    certainly    involve 


^^  Cf.    Westlake,    International    Arbitration    in    International 
Journal  of  Ethics,  October,  1896. 


94  A  Society  of  States 

"vital  interests,"  vet  almost  the  whole 
frontier  between  America  and  Canada  has 
been  settled  as  a  result  of  a  long  series  of 
decisions  of  Courts  of  Aj-bitration.  The 
British  Government  at  first  refused  to  sub- 
mit to  arbitration  the  claims  made  by  the 
United  States  for  losses  caused  to  the  North 
in  the  Ajnerican  Civil  War  by  the  fitting 
out  of  the  Alabama  and  other  privateers 
within  the  British  jurisdiction,  on  the 
ground  that  "Her  Majesty's  government 
are  the  sole  guardians  of  their  own  honour," 
yet  they  eventually  changed  their  mind,  and, 
although  the  award  went  overwhelmingly 
against  us,  we  abode  loyally  by  the  result." 
Cases  such  as  these  clearlv  involved  the 
sovereignty  of  the  arbitrating  States,  yet 
neither  the  British  nor  the  American  Gov- 
ernments were   deemed  to  derogate   from 

12  Morris,  International  Arbitration  and  Procedure,  ch.  3. 


The  League  of  Nations  95 

their  sovereignty  or  independence  by  de- 
termining their  disputes  by  the  decision  of 
a  Court  instead  of  by  force  of  arms. 

Since  1914  the  United  States  has  en- 
tered into  Peace  Commission  Treaties  with 
some  thirty  other  powers,  including  Great 
Britain,"  France,  Italy  and  Russia,  but  not, 
significantly  enough,  Germany,  Austria, 
Turkey,  or  Bulgaria.  The  A.B.C.  Powers 
(Argentina,  Brazil  and  Chili)  have  made 
a  similar  treaty.  These  treaties  mark  a 
big  step  forward  in  international  practice. 
The  parties  agree  for  a  period,  usually  five 
years,  that  all  disputes  between  them  of 
every  nature  whatsoever,  other  than  those 
covered  by  existing  arbitration  treaties,  shall 
be  referred  for  investigation  and  report  to 
a    Permanent    International    Commission, 


*'  The  treaty  with  Great  Britain  is  easily  accessible  in  Carl 
Heath's  The  Pacific  Settlement  of  International  Disputes,  ch.  5. 


96  A  Society  of  States 

and  agree  not  to  declare  war  or  begin  hostili- 
ties during  the  investigation  or  before  the 
report  is  submitted.  The  report  is  to  be 
completed  within  a  year  after  the  investiga- 
tion is  begun,  and  after  the  report  has  been 
submitted  the  parties  reserve  the  right  to 
act  independently  on  the  subject-matter  of 
the  dispute.  Since  existing  arbitration 
treaties  cover  only  such  justiciable  disputes 
as  do  not  affect  vital  interests,  national  in- 
dependence, and  honour,  it  will  be  seen  that 
two  main  classes  of  dispute  fall  to  be  sub- 
mitted to  the  Peace  Conmiission:  (1)  jus- 
ticiable disputes  affecting  vital  interests, 
national  independence,  and  honour;  (2) 
non- justiciable  disputes. 

It  may  be  pointed  out  that  whilst  these 
treaties  hold  out  great  hopes  for  the  future 
of  international  relations,  they  implicitly 
retain    the    traditional    unreal    distinction 


The  League  of  Nations  97 

between  disputes  involving  national  inde- 
pendence, vital  interests,  and  national 
honour  and  those  that  do  not.  The  true 
distinction  which  should  be  drawn  is  between 
disputes  susceptible  of  judicial  decision, 
that  is,  those  arising  out  of  questions  as  to 
International  Law  or  the  interpretation  of 
treaties  and  those  not  susceptible  of  judicial 
decision,  that  is,  those  not  so  arising. 

In  tlie  cases  of  arbitration  above  referred 
to  as  in  the  past  having  successfully  found 
a  solution  for  international  difficulties  the 
agreement  for  arbitration  was  made  ad  hoc. 
Under  a  League  of  Nations  the  treaty  will 
bind  all  the  signatories  to  submit  justiciable 
disputes  to  a  judicial  tribunal,  and  to  carry 
into  effect  the  decisions  of  that  tribunal. 
The  derogation  from  sovereignty  is  there- 
fore general.  A  State  so  long  as  it  remains 
a  member  of  the  League  no  longer  has  a 


98  A  Society  of  States 

choice  whether  by  a  fresh  act  of  its  own 
it  shall  or  shall  not  submit  a  particular 
question  for  judicial  decision.  The  German 
delegate  at  the  Hague  Conference  of  1907, 
Marschall  von  Bieberstein,  stated"  that  to 
agree  to  submit  a  difference  which  has 
arisen  to  arbitration  on  terms  and  before  an 
arbitrator  mutually  agreed  upon  w^as  one 
thing,  to  be  obliged  whatever  the  circum- 
stances to  place  oneself  in  the  hands  of 
judges  not  of  one's  own  choosing  was  some- 
thing very  different.  And  indeed  it  is 
something  very  different  from  the  habit  of 
German  thought,  but  not  so  different  from 
Enghsh  thought  and  practice  as  might  be 
imagined. 


^*  Cf.  Parliamentary  Papers:  Misc.,  No.  4  (1908),  pp.  284» 
354,  3.59,  362.  So  Sir  Walter  Phillimore:  "One  of  the  defects 
of  all  arbitration  treaties  up  to  now  is  that  they  have  been  not 
agreements  to  refer,  but  agreements  to  agree  to  refer,  which  is 
a  very  different  thing"  (July  23rd,  1917). 


The  League  of  Nations  99 

To  the  Germans  it  is  "impossihle  to  con- 
ceive"^'' that  there  should  be  a  judge  of  a 
sovereign  State  not  of  its  own  choosing;  by 
a  parity  of  reasoning  the  sovereign  State 
cannot  be  bound  by  law  not  of  its  own  mak- 
ing. "This  truth  is  unquestionable,"  says 
Seydel/*'  "there  is  no  law  mthout  a  sov- 
ereign, above  the  sovereign,  or  besides  the 
sovereign;  law  exists  only  through  the  sov- 
ereign." The  Frenchman,  L.  Duguit," 
with  a  touch  of  perhaps  unnecessary  scepti- 
cism, says  on  the  other  hand,  "if  there  is 
such  a  thing  as  sovereignty  of  the  State  it 
is  juridically  limited  by  the  rule  of  Law." 

English  common  sense,  as  w^e  have  seen, 
has  determined  that  the  rule  of  law  is  con- 
sistent with  the  retention  by  the  State  of 

i^Treitschke:  Politik.  l.  73. 
1^  Grundziige  ciner  Allgemeinen  Staaislchre,  p.  14. 
^^  VEtai:  le  Droit  Objedif  et  la  Loi  Positive,  ch.  i.    (American 
translation),  p.  247. 


100  A  Society  of  States 

its  sovereign  powers.  In  the  same  way  it  is 
to  be  hoped  that  the  common  sense  of  the 
coming  generation  will  recognize  that  a 
general  agreement  for  the  submission  of 
questions  of  legal  right  and  wrong  to  an 
impartial  tribunal  involves  no  pernicious 
limitation  upon  the  sovereign  right  of  the 
State. 

There  is  indeed  another  difference  not  yet 
mentioned  between  previous  international 
arbitrations  and  those  Avhich  would  take 
place  ^^dthin  a  League  of  Nations.  Hitherto 
it  has  been  left  to  the  honour  of  the  States 
concerned  to  abide  by  and  fulfil  the  judg- 
ments. It  is  to  the  credit  of  the  States 
concerned  that,  so  far  as  I  am  aware,  every 
judgment  of  an  arbitral  court  has  in  mod- 
ern times  been  i^erformed.  In  a  League  of 
Nations,  according  to  almost  every  plan 
put  forward,  the  award  will  have  behind  it 


The  League  of  Nations  101 


'& 


the  sanction  of  the  armed  force  of  all  the 
members  of  the  League.  To  those  who  be- 
lieve in  the  binding  force  of  treaties  the 
addition  of  a  sanction  does  not  add  a  more 
serious  restriction  upon  sovereign  power 
than  that  already  admitted. 

It  must  be  clearly  understood  that  no 
scheme  yet  put  forward  for  a  League  of 
Nations  provides  an  executive  for  the 
League.^^  The  League  acts  through  the 
States.  The  importance  of  this  distinction 
cannot  escape  any  reader  of  the  controver- 

'^  This  is  not  true  of  individual  writers,  e.g.,  Brailsford,  and 
tentatively,  Lowes  Dickinson  {The  Choice  before  Us,  pp.  193, 
209).  Since  the  MS.  of  this  book  was  written,  however.  Vis- 
count Grey,  to  whom  the  progress  of  the  ideals  of  the  League  of 
Nations  movement  is  due  more  than  any  other  statesman  except 
President  Wilson,  has  lent  his  authority  to  the  proposal  for  the 
creation  of  an  international  force. 

Every  scheme,  of  course,  involves  a  small  secretariat  and  a 
certain  unity  of  command  and  control,  liut  it  would  not  be 
proper  to  speak  of  the  present  alliance  as  having  an  executive 
because  unity  of  strategic  command  has  been  achieved  under 
Marshal  Foch  and  economic  and  financial  co-operation  under 
the  various  Commissions  which  have  been  constituted, 


102  A  Society  of  States 

sies  which  raged  over  the  Federal  Constitu- 
tion of  the  United  States.  Alexander 
Hamilton  made  it  a  cardinal  point  in  his 
cami^aign  for  the  substitution  of  a  Federal 
Government  in  place  of  the  then  existing 
Confederation  that  the  Government  should 
"carry  its  agency  to  the  persons  of  the 
citizens."  "It  must,"  he  said,  "stand  in 
need  of  no  intermediate  legislations;  but 
must  itself  be  empowered  to  employ  the  arm 
of  the  ordinary  magistrate  to  execute  its 
own  resolutions.  .  .  .  [It]  must  be  able  to 
address  itself  immediately  to  the  hopes  and 
fears  of  individuals.  It  must,  in  short,  pos- 
sess all  the  means,  and  have  a  right  to  resort 
to  all  the  methods,  of  executing  the  powers 
with  which  it  is  entrusted,  that  are  pos- 
sessed and  exercised  by  the  governments  of 
the  particular  States."'"     No  such  govern- 

"  The  Federalist,  No.  16. 


The  League  of  Nations  103 

mental  powers  will  be  accorded  to  the 
League  of  Nations  as  at  present  proposed. 

In  one  minor  respect  it  is  possible  that 
the  formation  of  a  League  of  Nations  may 
restore  rights  of  sovereignty  now  lost.  If 
I^resident  Wilson's  schemes  for  securing 
"the  freedom  of  the  seas"  are  accepted,  in 
a  war  not  waged  by  the  League  itself, 
neutrals  will  not  be  subject  to  some  of  those 
infringements  of  their  sovereignty,  such  as 
the  rules  as  to  contraband  and  blockade,  to 
which  at  present  they  must  i^erforce  submit. 

We  may  at  this  point  consider  how  the 
theorists  on  sovereignty  would  have  re- 
garded it  in  relation  to  the  proposed  League. 
Would  Austin  have  considered  that  the 
sovereignty  of  the  member  States  was  im- 
paired by  joining  the  League?  We  shall 
best  be  able  to  answer  this  question  if  ^\'c 


104  A  Society  of  States 

examine  what  Austin's  views  were  on  sov- 
ereignty in  relation  to  Confederations. 

He  first  distinguishes  a  Confederation 
from  a  Federal  State.  In  a  Federal  State 
he  holds'"  each  of  the  several  States  has  re- 
linquished a  portion  of  its  sovereignty,  and 
consequently  the  several  governments  of 
the  several  united  Societies  are  jointly  sov- 
ereign in  each  and  all — the  sovereignty 
resides  in  the  united  governments  as  form- 
ing one  aggregate  body.  In  a  system  of 
Confederated  States,  on  the  other  hand, 
each  of  the  several  Societies  is  an  inde- 
pendent political  Society  and  each  of  their 
several  governments  is  properly  sovereign 
or  supreme.  For  neither  the  terms  of  the 
compact  framing  the  Confederation  nor  the 
subsequent  resolution  of  the  Confederation 
arc  enforced  in  any  of  the  Societies  by  that 

2"  loc.  cit.,  Lect.  6. 


The  League  of  Nations  105 

aggregate  body — they  owe  their  legal  effect 
ill  each  several  Society  to  the  authority  of 
that  Society.  "In  short,  a  system  of  con- 
federated States  is  not  essentially  different 
from  a  nimiber  of  independent  governments 
connected  by  an  ordinary  alliance."  In  the 
same  way,  the  Frenchman  Ortolan,  states^^ 
that  each  of  the  several  States  preserves  its 
political  identity  and  its  own  sovereignty, 
subject  to  the  restrictions  to  which  it  has 
consented,  although  it  is  bound,  so  far  as  it 
is  concerned,  to  give  effect  to  the  decisions 
of  the  Confederation  since  it  has  been  a 
party  to  the  taking  of  them. 

Austin  next  endeavours  to  distinguish 
precisely  between  confederated  States  and 
an  alliance.  But  he  "can  only  affirm  gen- 
erally and  vaguely,  that  the  compact  of  the 
former  is  intended  to  be  permanent,  whilst 

21  Diplomatie  de  la  Mer  (4th  ed.),  Bk.  i.,  ch.  2.,  p.  14. 


106  A  Society  of  States 

the  alliance  of  the  latter  is  commonly  in- 
tended to  be  temporary;  and  that  the  ends 
or  purposes  which  are  embraced  by  the 
compact  are  commonly  more  numerous,  and 
are  commonly  more  complicated,  than  those 
which  the  alliance  contemx^lates.""^ 

Would  Austin  then  have  considered  that 
the  League  of  Nations  created  a  Federal 
System  or  a  system  of  confederated  States 
or  merely  an  alliance?  No  League  of  Na- 
tions likely  to  be  constituted  in  the  near 
future  can  fall  within  Austin's  conception 
of  a  federal  State;  we  are  still  far  from 
that  "Federation  of  the  World"  of  which 
Tennyson  had  a  vision  as  the  goal  of  human 
progress.  It  is  more  difficult  to  say  whether 
Austin  would  have  classed  the  League  as 
a  confederation  or  as  an  alliance.    This  may 

22  Austin,  loc.  cit.  p.  269. 


The  League  of  Nations  107 

be  best  considered  in  the  Hght  of  a  concrete 
example. 

Austin  took  as  an  instance  of  a  system 
of  confederated  States  the  German  Con- 
federation as  it  existed  between  1820  and 
1866.^^  If  we  examine  its  constitution  we 
shall  at  first  be  struck  by  the  resemblance 
of  some  of  the  provisions  to  those  which 
occur  in  the  Draft  Treaties  for  a  League 
of  Nations.  The  several  States  retained  the 
right  of  entering  into  relations  with  foreign 
States  provided  they  did  notliing  against 
the  security  of  any  other  member  or  of  the 
Confederation  itself.  The  several  States 
sent  plenipotentiaries  to  a  Diet  which  acted 
as  the  organ  of  the  Confederation  for  com- 
mon external  purposes.  It  could  declare 
war  against  foreign  States  on  the  territory 

"The  German  Confederation  of  1820  was  unaggressive:  it 
kept  the  peace.  Phillimore,  Three  Centuries  of  Treaties  of  Peace, 
ch.  3,  p.  37. 


103  A  Society  of  States 

of  the  Confederation  being  threatened.    The 
Diet  had  no  forces  other  than  those  of  the 
several  States  which  it  could  employ.     It 
had  no  sovereignty  over  the  individual  sub- 
jects of  the  member  States;  those  subjects 
owed  allegiance  to  the   State  government 
alone.     But,  if  we  look  for  differences  in- 
stead of  resemblances,  we  shall  find  these  no 
less  noteworthy.    Whilst  in  the  schemes  for 
a  League  of  Nations  a  right  is  generally 
left  to   the    States   to  resort   to   hostilities 
against  each  other  in  the  case  of  non- justici- 
able disputes,  provided  the  procedure  for  a 
moratorium  is  first  complied  with,  in  the 
German  Confederation  the  States  were  not 
alloAved  to  make  war  on  each  other  in  any 
circimistances.     Further,  the  Confederated 
States    mutually    guaranteed    each    other's 
possessions.     The  Diet,  moreover,  could  re- 
ceive   and    accredit    envoys    and    conclude 


The  League  of  Nations  109 

treaties  on  behalf  of  the  Confederation. 
These  distinctions  seem  to  suggest  that  a 
League  of  Nations  would  probably  have 
been  classed  by  Austin  as  an  aUiance  rather 
thaii  a  confederation.  If  that  be  the  case, 
no  one  Avould  deny  to  the  several  States  in- 
dependence or  sovereignty.  Yet  it  will  be 
an  alliance  of  wider  scope,  of  nobler  aim 
and  (we  may  hope)  of  greater  permanence 
than  any  which  history  records.  It  will  be 
an  alliance  showing  some  of  the  character- 
istics of  a  Confederation.  According  to  our 
temperament  we  shall  draw  despair  or  hope 
from  the  undoubted  historic  fact  that  no 
Society  of  confederated  States  has  long 
survived;  the  States  have  either  separated 
and  formed  new  combinations  or  strength- 
ened  their   bonds    and   become   a    federal 


union.^* 


24  See  Appendix  T. 


110  A  Society  of  States 

Since  Austin  considered  that  in  a  Con- 
federation the  sovereignty  of  the  constituent 
States  was  unimpaired,  to  him  it  would  have 
had  no  bearing  on  our  present  discussion, 
whether  the  League  was  held  to  be  a  Con- 
federation or  an  alliance.  But  most  modern 
writers  on  International  Law  make  a  rele- 
vant distinction,  and  hold  that,  whilst  allied 
States  retain  their  sovereignty  and  inde- 
pendence in  full,  confederated  States  are 
possessed  only  of  an  imperfect  independ- 
ence. 

It  was  a  cardinal  tenet  of  the  theorv  of 
sovereignty  as  expounded  by  the  earlier 
writers  that  sovereignty  was  in  its  nature 
one  and  indivisible.  Bodin  and  Hobbes, 
Bentham  and  Austin,  differing  on  much 
else,  all  agreed  on  this.^'^  "Theories  of  sov- 
ereignty,"  it   has   been   said,^"   "have   been 

*^  Aliter  William  Penn,  op.  cit.     Conclusion. 

*^  Jethro  Brown,  Austinian  Theory  of  Law,  p.  272. 


The  League  of  Nations  111 

more  often  ajjologies  for  a  cause  than  the 
expression  of  a  disinterested  love  of  truth." 
In  no  respect  is  that  more  true  than  in  re- 
spect of  the  extremely  artificial  doctrine" 
that  sovereignty  cannot  be  divided.  It  has 
served  the  interest  of  polemics,  not  of  truth. 
The  uses  to  which  it  has  been  put  are  vari- 
ous. Hobbes  used  it  as  a  weapon  with  which 
to  denounce  the  Papacy.  In  the  Ameri- 
can Civil  War  the  leaders  on  both  sides 
proclaimed  that  sovereignty  was  indivisible. 
But,  whereas  the  Northerners  found  that 
under  the  constitution  the  sovereigntj^  was 
in  the  nation  as  a  whole,  the  Southerners, 
led  by  Calhoun,  held  that  the  sovereignty 
was  left  in  the  separate  States.  In  fact,  the 
American  Constitution — Viscount  Bryce 
suggests    perhaps    intentionally"^ — left    the 


2^  Bryce,  loc.  cit ,  p.  93. 
28  Ibid.,  p.  106. 


112  A  Society  of  States 

point,  which  involved  the  right  of  the  States 
to  secede  or  determine  the  Federation,  in- 
determinate. It  was  left  for  a  decision  to 
be  given  de  facto  by  the  sword. 

So  long  as  the  question,  who  is  the  sov- 
ereign, is  left  open,  there  is,  as  Sir  Leslie 
Stephen  has  said,"''  "a  condition  of  unstable 
equilibrium  or  latent  anarchy." 

Yet  we  find  the  same  evasion  of  this  im- 
portant point  in  the  Constitution  of  the 
German  Confederated  States  in  1820.  The 
States  had  no  formally  recognized  right  to 
withdraw  from  the  Confederation.  From 
this  some  writers'^"  infer  that  they  had  by 
implication  a  right  to  secede,  others^^  that 
they  had  not. 

Still  more  surprising  at  first  sight  in  the 
light  of  the  lessons  of  the  American  Civil 

=»  Ilohhes,  ch.  4,  p.  200, 

'"  E.g.,  Jcthro  Brown,  op.  dt.,  p.  152. 

"  E.g.,  Hall,  op.  cit.,  Pt.  i.,  ch.  1,  p.  27. 


The  League  of  Nations  113 

War  is  the  fact  that  of  the  schemes  for  a 
League  of  Nations  put  forward  by  the 
American  and  Enghsh  Societies  neither 
gives  any  indication  whether  a  member  of 
the  League  is  to  be  allowed  to  withdraw 
from  it.  Advocates  of  the  League  hold 
widely  different  views  on  this  point:  Mr. 
Brailsford  says  that,  since  the  essence  of  the 
League  is  a  voluntary  association  of  na- 
tions, "the  right  of  secession  from  it  must 
be  acknowledged  and  respected."^-  Lord 
Parker  of  Wadding-ton  on  the  other  hand 
seems  to  have  believed  that  most  advocates 
of  the  League  hold  the  other  view:  "To 
admit  the  right  of  its  members  to  withdraw 
from  the  League,"  he  wrote  when  pointing 
out  the  difficulties  in  the  way  of  the  League, 
"would  be  as  fatal  to  the  League's  sovereign 
power  as  would  have  been  the  recognition 

'2  A  League  of  Nations,  cli.  10,  p.  307. 


114  A  Society  of  States 


ol*  the  right  to  secede  from  the  Union  to  the 
sovereign  right  of  the  United  States."^^ 

It  would,  however,  seem  clear  that  in  the 
beginning  the  League  must  be  a  society  of 
free  States,  joining  the  League  of  their  own 
free  will  and  at  liberty  to  leave  it  of  their 
own  free  will,  provided  sufficient  notice  is 
given  of  their  intention  so  to  do.  The  es- 
sence of  the  Roman  law  of  partnership, 
Societas,  was  that  it  was  voluntary.  It  was 
founded  on  the  free  consent  of  the  partners. 
No  one  could  be  made  a  partner  against  his 
will.  For  you  cannot  rely  upon  the  good 
faith  of  a  man  who  is  forced  into  an  asso- 
ciation against  his  will.  "The  Jacobin  in- 
terpretation of  fraternity,  'Be  my  brother, 
or  I'll  kill  you,'  is  not  the  language  of  sound 
statesmanship."^*  But  force  of  circum- 
stances may  drive  a  man  irresistibly  into  a 

33  In  a  letter  to  The  Times,  June  25,  1918. 

31  Sir  Rolan  K.  Wilson,  The  Pronnce  of  the  State,  ch.  13,  p.  244. 


The  League  of  Nations  115 

partnership.  If  the  League  of  Nations  is 
joined  by  all  the  great  States  but  one,  that 
one  outside  will  be  unable  to  claim  the  as- 
sistance of  the  others  when  in  the  right,  but 
exposed  to  the  full  weight  of  their  joint 
hostility  when  deemed  to  be  in  the  wrong. 
Such  a  position  would  not  long  be  tenable.^^ 
But  Societas  was  voluntary,  not  only  in 
its  incej^tion  but  also  in  its  termination.  It 
was  a  maxim  of  Roman  law  that  no  one 
can  be  compelled  to  remain  in  a  partnership 
against  his  will.  The  idea  of  fraternity  is 
characteristic  of  the  relation  of  partnership. 
In  order  to  safeguard  the  interests  of  the 
remaining  partners  the  rule  was  introduced 
that  where  a  partner  renounced  his  partner- 
ship with  an  improjjcr  end  in  view  or  at  a 
time  injurious  to  the  partnership  interests 
he  should  be  penalised.    He  remained  liable 

36  Ibid,  ch.  1,  p.  11;  eh.  13.  p.  219. 


116  A  Society  of  States 

to  the  others  to  the  extent  of  the  loss  occa- 
sioned to  them  by  his  defection;  whilst  he 
had  no  share  in  any  profit  made  subsequent 
to  the  renunciation.  So  perhaps  with  the 
League  of  Nations.  If  the  Constitution 
leaves  the  point  open  as  did  that  of  the 
United  States  it  is  possible  that  in  course 
of  time,  as  the  League  extends  its  activities 
and  gains  the  confidence  of  is  members,  it 
will  come  to  be  recognized  that  to  abandon 
the  League  would  be  an  apostasy  which,  if 
persisted  in,  would  be  so  just  a  cause  for 
suspicion  in  the  abiding  members  of  the 
League  that  it  would  justify  recourse  to 
war. 

Should  that  time  come,  if  the  theory  that 
sovereignty  is  one  and  indivisible  be  re- 
tained, we  should  probably  be  driven  to 
concede  that,  as  in  America,  the  States  had 
yielded    their    Sovereignty   to   the    Union. 


The  League  of  Nations  117 

"Sovereignty,"  says  a  popular  writer,^"  "is 
the  very  essence  of  union."  But  is  sov- 
ereignty really  indivisible?  That  is  not  the 
view  which  has  approved  itself  to  the 
Supreme  Court  of  the  United  States.  It 
seems  clear  that  the  legal  sovereignty  as 
distinct  from  the  practical  sovereignty  may, 
for  different  purposes,  reside  in  different 
organs.  The  distinction  between  practical 
and  legal  sovereignty  has  been  well  ex- 
plained by  Viscount  Bryce:  practical  sov- 
ereignty "is  the  power  which  receives  and 
can  b}^  the  strong  arm  enforce  obedience"; 
legal  sovereignty  "belongs  to  him  who  can 
command  obedience  as  of  right.""  The 
weight  of  modern  authority  is  that  internal 
legal  sovereignty  is  divisible.^^ 

If  internal  sovereignty  is  not  indivisible 

3'  F.  S.  Oliver,  Alexander  Hamilton,  Bk.  vi.,  ch.  6. 

"  Op.  cit.,  p.  69. 

38  E.g.,  Bryce,  Jethro  Brown,  Oppenheim. 


118  A  Society  of  States 

a  breach  has  been  made  in  the  inexpugnable 
fortress  of  traditional  theory — a  theory  de- 
signed for  polemical  purposes  with  a  view 
to  internal  rather  than  external  sovereignty. 
If  we  look  at  facts  rather  than  theories  we 
shall  find  examples  which  seem  to  prove  that 
de  facto  it  has  already  been  recognized  that 
external  sovereignty  also  may  be  distributed 
in  different  organs  for  different  purposes. 
When  the  Ionian  Islands  were  in  1815 
placed  as  a  free  and  independent  State 
under  the  protectorate  of  Great  Britain, 
they  retained  a  separate  trading  flag,  con- 
tinued to  receive  consuls,  and  were  not 
affected  by  British  treaties.  But  their  ex- 
ecutive was  appointed  by  Great  Britain  and 
they  were  represented  in  external  relations 
by  Great  Britain.  Yet  in  the  Crimean  War 
it  was  held  that  the  State  of  the  Ionian 
Islands  was  neutral. 


The  League  of  Nations  119 

By  the  Act  which  provided  for  the 
neutrahty  and  autonomous  government  of 
the  Samoan  Islands  in  1889  Great  Britain, 
Germany,  and  the  United  States  agreed 
that,  whilst  the  Samoans  were  to  be  inde- 
pendent and  free  to  elect  their  Chief  or 
King,  should  any  dispute  arise  about  the 
election  or  the  powers  of  the  King,  it  should 
be  decided  by  reference  to  the  Chief  Justice 
who  was  to  be  appointed  by  one  of  the  three 
signatory  Powers.  Any  difference  between 
any  of  those  Powers  and  Samoa  was  to  be 
decided  not  by  war  but  by  the  Chief  Jus- 
tice; who  moreover  in  his  criminal  jurisdic- 
tion was  to  ajDply  the  law  of  the  United 
States,  England,  or  Germany  as  he  should 
think  most  appropriate,  and  in  the  case  of 
natives  the  laws  and  customs  of  Samoa.^^ 


3'  Professor  Simeon  E.  Baldwin,  The  Dwision  of  Sovereignty, 
in  International  Law  Notes,  vol.  iii.,  p.  59. 


120  A  Society  of  States 

In  these  two  cases  (and  there  are  others) 
we  clearly  see  a  division  of  external  sov- 
ereignty in  fact.  If  the  power  of  the 
League  grows  to  such  an  extent  that  the 
right  of  secession  is  lost  we  shall  have 
another  instance  of  the  same  thing.  And 
this  may  also  prove  to  be  the  case  if  the 
League  having  justified  itself  by  success 
gradually  gains  in  legislative  and  executive 
power. 

§2.    INDEPENDENCE 

(a)   Intervention 

The  "rights"  of  independence  must  be 
considered  in  detail.  The  first  thing  that 
will  strike  us  is  that  the  whole  character  of 
intervention  will  be  changed  in  those  cases 
in  which  a  member  of  the  League  violates 
the  provisions  of  the  Treaty. 


The  League  of  Nations  121 

In  the  past  intervention  has  always 
raised  a  moral  problem,  for  there  was  a 
clash  between  the  right  to  independence  of 
the  intervening  State  and  the  right  to  in- 
dependence of  the  State  in  whose  affairs  it 
intervened.  Under  a  League  of  Nations 
intervention  in  fulfilment  of  the  obligations 
imposed  by  the  League  will  no  longer  be 
"an  act  of  high  policy"  but  the  performance 
of  an  obligation;  it  Avill  no  longer  be  the 
reverse  of  which  indei)endence  is  the  ob- 
verse, but  its  complement;  neutrality  will 
no  longer  be  a  duty  but  a  crime  against  the 
Society  of  States.  In  such  cases  the  right 
of  self-preservation  is  reinforced  by  the  duty 
in  the  colleague  States  of  lending  their  aid 
for  the  preservation  of  the  wronged  State. 
So  in  the  present  war  Great  Britain  is  im- 
plementing her  obligation  to  preserve  the 
independence  of  Belgium. 


122  A  Society  of  States 

(b)   Other  Modifications 

(1)  The  right  to  self-preservation  will 
be  further  limited,  for  it  will  no  longer  be 
possible  in  justification  of  a  sudden  attack 
upon  a  neighbour  to  appeal  to  the  right  to 
prevent  and  forestall  an  imminent  attack 
from  him.  The  moratorium  before  recourse 
is  had  to  war  provided  by  all  schemes  for 
a  League  of  Nations  will  preclude  that  pos- 
sibility. But  in  the  past  also,  as  we  have 
seen,^°  States  have  voluntarily  limited  the 
means  employed  even  to  preserve  their  own 
being.  The  period  of  self-denial  which 
States  anxious  to  go  to  war  will  impose  upon 
themselves  by  joining  the  League  will  not 
be  the  first  voluntary  restriction  put  upon 
the  right  of  self-preservation. 

"Relative  disarmament"  is  sometimes  put 
forward   as   an   essential   of   a   League   of 

"Above,  p.  119. 


The  League  of  Nations  123 

Nations.  That  is  not  so;  and  many  hope 
that  the  two  problems  will  be  kept  distinct. 
But  even  if  the  members  of  the  League  do 
agree  upon  a  scheme  for  relative  disarma- 
ment it  will  not  affect  their  independence. 
It  has  never  been  suggested  that  if  Great 
Britain  and  Germany  had  come  to  an  agree- 
ment at  the  time  of  the  Haldane  mission 
they  would  have  lost  their  status  as  inde- 
pendent States.  Armies  and  navies  will  still 
be  raised  and  used  only  by  their  own  States, 
although  each  State  may  have  entered  into 
a  binding  obligation  to  use  its  forces  upon 
the  happening  of  certain  events.  War  will 
be  declared  by  the  State  under  an  obliga- 
tion to  the  League,  just  as  a  State  may 
be  under  an  obligation  to  declare  war  in 
pursuance  of  a  treaty  of  guarantee.^^  Again 

*^  See  Ex-President  Taft's  paper  at  the  First  Annual  Assemblage 
of  the  League  to  Enforce  Peace,  Washington,  May,  27,  1916,  in 
Enforced  Peace,  p.  59. 


124  A  Society  of  States 

it  is  possible  that  under  a  League  of  Na- 
tions Turkey  might  be  left  independent 
and  yet  prohibited  from  fortifying  Con- 
stantinople; France  did  not  cease  to  be  in- 
dependent after  the  Treaty  of  Utrecht,  nor 
did  Russia  in  1856  when  she  agreed  to  re- 
frain from  establishing  military  and  mari- 
time arsenals  on  her  coast  of  the  Black  Sea. 
Cardinal  Gasparri  during  the  present  war 
proposed  that  one  of  the  terms  of  peace 
should  be  that  conscription  should  be  made 
illegal  in  all  countries.  And  the  same  de- 
mand is  made  by  a  large  number  of  the 
advocates  for  the  formation  of  a  League  of 
Nations.  It  is  not,  however,  an  essential 
or  integral  part  of  the  scheme.  Should  the 
peace  terms  include  any  such  provision  it 
^vould  involve  a  definite  voluntary  limita- 
tion upon  the  riglits  arising  from  the  inde- 
pendence of  the  member  States,  for  it  has 


The  League  of  Nations  125 

been  consistently  held  that  a  general  diffu- 
sion of  military  science  and  training  is  a 
legitimate  means  of  self-preservation  which 
cannot  be  called  into  question  by  other 
States.*' 

(2)  The  vague  and  indeterminate  right 
of  a  State  to  increase  its  dominions  and  its 
power  by  all  lawful  means  will  be  given  a 
more  definite  shape.  It  is  generally  sug- 
gested that  in  addition  to  the  Judicial 
Tribunal  a  Council  shall  be  constituted  for 
the  purposes  of  inquiry  and  mediation.  It 
is  not,  however,  generally  recognized  that 
inquiry  and  mediation  are  in  their  nature 
distinct.  The  object  of  commissions  of  in- 
quiry is  to  suggest  what  to  the  Council 
seems  the  best  solution;  the  object  of  media- 
tion is  to  fmd  the  solution    (whether  in- 


*^  Burlamaqui,  Droit  Naturel,  Pt.  iv.,  ch.  i.,   §  13;    Halleck, 
op.  cit.,  vol.  i.,  ch.  4,  p.  122. 


126  A  Society  of  States 

trinsically  just  or  not)  which  both  parties 
will  be  prepared  to  accept.  The  difference 
is  that  between  the  methods  of  an  indus- 
trial arbitrator  and  those  of  Sir  George 
Askwith/' 

It  is  not  generally^*  proposed  that  the 
recommendations  of  the  Council  of  Conciha- 
tion  shall  have  any  binding  force,  although 
on  the  analogy  of  the  Peace  Commission 
Treaties  hostilities  must  not  be  commenced 
until  the  Council  has  reported.  No  serious 
limitation  will  therefore  be  imposed  upon 
the  independence  of  the  signatory  States. 
But  the  report  especially  in  cases  of  inquiry 
as  distinct  from  those  of  mediation  will  at 
least  provide  some  guidance  to  help  de- 
termine what  means  are  and  what  means  are 
not  innocent  and  lawful.     The  decisions  of 

*'  See  Woolf,  The  Framework  of  a  Lasting  Peace,  p.  37. 
^*  Otherwise  in  the  Draft  Treaties  of  the  Fabian  Society  and 
the  Dutch  Committee.    And  see  below,  p.  129. 


The  League  of  Nations  127 

the  Council  will  not  be  binding  but  they  will, 
if  the  League  is  a  success,  have  a  determinant 
moral  effect,  and  will  very  possibly  decide 
the  course  of  action  of  the  other  signatory 
States  in  any  war  that  may  arise. 

(3)  A  League  of  Nations  does  not  nec- 
essarily involve  any  limitation  on  the  right 
of  a  nation  to  monopolize  its  own  trade. 
Even  if  the  members  of  the  League,  as  some 
of  its  advocates  desire,^^  agreed  not  to  dis- 
criminate against  each  other  from  any 
motive  of  political  hostility,  that  would  only 
be  an  extension  of  the  "most  favoured  na- 
tion" policy  which  already  obtains.  And 
indeed  the  weight  of  international  opinion 


^^  So  the  greatest  of  all  the  advocates.  President  Wilson,  in 
his  speech  at  New  York  on  27th  September,  1918:  "There  can 
be  no  special,  selfish  economic  combinations  within  the  League, 
and  no  employment  of  any  form  of  economic  boycott  or  exclusion, 
except  as  the  power  of  economic  penalty  by  exclusion  from  the 
markets  of  the  world  may  be  vested  in  the  League  of  Nations 
itself  as  a  means  of  discipline  and  control."     See  below,  p.  128. 


128  A  Society  of  States 

was  already  before  the  war  definitelj^  against 
any  such  right  of  unfair  discrimination. 

In  1888  Mr.  Bayard,  Secretary  of  State 
for  the  United  States,  protested  against  the 
imposition  upon  American  citizens  of  a  tax 
from  which  the  citizens  of  another  power 
were  exempt,  and  appealed  to  "the  general 
principle  of  the  law  of  nations  which  justi- 
fies this  government  in  insisting  that  there 
shall  be  no  undue  discrimination  against 
citizens  of  the  United  States  wherever  they 
may  be  resident. "^^  The  long  controversy 
between  Germany  and  the  U.  S.  A.  with 
reference  to  the  inspection  of  American  pork 
cxjjorted  to  Germany  ended  on  paper  in  a 
vindication  of  the  same  principle.  But 
Germany,  though  she  repealed  the  decree 
excluding  American  pork,  in  practice  still 

*^  Moore,  Digest  of  International  Law,  ii.,  57. 


The  League  of  Nations  129 

imposed  harassing  and  vexatious  difficulties 
in  the  way  of  importers.^^ 

(4)  The  League  will  in  no  way  interfere 
with  the  right  of  the  member  State  to  choose 
its  rulers  or  its  own  form  of  government.  It 
may,  hoAvever,  be  noted  that  long  ago 
Montesquieu  pointed  out^^  that  Confedera- 
tions worked  best  in  the  case  of  republics: 
it  is  improbable  that  any  autocracy  will  be 
admitted  to  the  League,  or  that  if  it  were 
it  would  long  remain  a  member.  The  ad- 
mission of  Philip  of  Macedon  as  a  member 
destroyed  the  Amphictj'^onic  Council. 

( 5 )  It  would  not  seem  that  the  formation 
of  the  League  will  in  any  way  further  curtail 
the  right  of  a  State  to  exclude  foreigners 
from  its  territory. 

(6)  We  have  seen  that  relative  disarma- 


*''  EUery  Stowell,  International  Cases,  i.,  292-5. 
*8  De  L Esprit  des  Lois,  Bk.  ix.,  ch.  2. 


130  A  Society  of  States 

ment  is  not  a  necessary  or  inevitable  condi- 
tion of  a  League  of  Nations.  If,  however, 
a  satisfactory  scheme  for  relative  disarma- 
ment can  be  devised  (and  it  is  devoutly  to 
be  hoped  that  it  can),  then  it  seems  clear 
that  there  must  be  provisions  to  secure  that 
no  faithless  member  of  the  League  shall 
secretly  exceed  the  limits  set  for  its  military 
or  naval  forces.  Those  provisions  would 
probably  involve  a  right  of  visit  and  inspec- 
tion in  favour  either  of  the  officials  of  the 
League  or  of  the  accredited  representatives 
of  any  member  State.  This  would  set  a 
new  limitation  upon  the  right  of  territorial 
inviolability. 

(7)  Implicit  or  explicit  in  any  scheme  for 
a  League  of  Nations  is  the  provision  that 
no  treaty  shall  be  entered  into  by  a  member 
inconsistent  with  the  terms  of  the  treaty  con- 


The  League  of  Nations  131 

stitiiting  the  League.*"  But  this  implies  no 
new  hmitation  upon  the  right  of  the  sov- 
ereign States  to  negotiate  what  treaties 
they  will.  In  the  past  also  sovereign  States 
have  restricted  their  own  power  to  make  new 
treaties  by  the  terms  of  alliances  already 
formed  with  other  States.  This  self-im- 
posed restriction  has  been  rightly  regarded 
as  affecting  only  the  eocercise  of  the  power 
of  making  treaties,  not  as  a  modification  of 
the  power  itself.^" 

A  similar  conclusion  will  be  arrived  at  in 
connexion  with  the  proposal  in  The  Mini- 
mum Programme  of  the  Central  Organiza- 
tion for  a  Durable  Peace  (whose  offices  are 
at  The  Hague)  that  all  secret  treaties  shall 
be  void.     The  open  diplomacy  demanded 

*'  President  Wilson  expresses  this  idea  in  the  following  words: 
"There  can  be  no  leagues  or  alliances  or  special  covenants  and 
understandings  within  the  general  and  common  family  of  the 
League  of  Nations."     (Sept.  27,  1918.) 

"  Halleck,  Oy.  cit.,  vol.  i.,  ch.  8,  p.  293. 


132  A  Society  of  States 

by  President  Wilson^^  involves  no  real  lim- 
itation upon  the  treaty-maldng  power  of 
member  States. 

(c)   The  Effect  of  Treaties 

It  may  be  hoped  that  the  formation  of  a 
League  of  Nations  will  give  the  solution  of 
one  of  the  problems  which  have  most  vexed 
international  lawyers.  We  have  seen  that 
according  to  German  theory  States  are 
bound  by  treaties  only  so  long  as  it  is  con- 
venient to  them  to  remain  bound.  In  1908, 
putting  this  theory  into  practice,  Ferdinand 
of  Bulgaria  issued  a  declaration  of  inde- 
pendence, and  Francis  Joseph  of  Austria- 
Hungary  annexed  Bosnia  and  Herzegovina 
in  flat  violation  of  the  Treaty  of  Berlin  of 
1878. 

The  binding  force  of  treaties  had  been 

■"'  See  below,  p.  134.     Cf.  Clause  15  of  the  Fabian  scheme. 


The  League  of  Nations  133 

declared  in  its  most  categoric  form  by  the 
Great  Powers  (inehiding  Austria-Hun- 
gary) in  1870.  In  1856  by  the  Treaty  of 
Paris  Russia  was  jirevented  from  maintain- 
ing a  fleet  in  the  Black  Sea;  in  1870,  taking 
advantage  of  France's  pre-occupation  with 
the  war  with  Prussia,  she  denounced  this 
provision  of  the  Treaty.  A  conference  was 
held  of  the  Powers  signatory  to  the  Treaty 
of  Paris,  and  the  Powers  that  attended — 
Great  Britain,  Germany,  Austria-Hungary, 
Russia,  and  Turkey — (wliilst  conceding  to 
Russia  what  she  had  taken  for  herself) 
made  a  solemn  declaration  that  "it  is  an 
essential  principle  of  the  law  of  nations  that 
no  power  can  liberate  itself  from  the  en- 
gagements of  a  treaty,  or  modify  the  stipu- 
lations thereof,  unless  with  the  consent  of 
the  contracting  powers  by  means  of  an 
amicable  arrangement." 


134  A  Society  of  States 

Most  English  writers  have  chosen  the 
middle  course  between  the  stringency  of  the 
1870  declaration  and  the  immoral  absolu- 
tion given  to  States  by  Treitschke.^^  Each 
extreme  doctrine  flows  from  following 
State-independence  to  its  logical  conclusion. 
If  we  look  at  the  State  which  wishes  to 
release  itself  from  its  obligation,  then,  if  its 
independence  means  that  it  is  above  and  be- 
yond the  law,  it  may  repudiate  treaties  at 
its  pleasure.     So  Treitschke. 

If  we  look  at  the  parties  who  wish  to  up- 
hold the  treaty,  then  any  one  of  them,  if  it 
be  a  completely  independent  unit,  may  hold 
that  State  which  wishes  to  be  released  to  the 
letter  of  its  bond,  even  though  all  the  other 
States  party  to  the  agreement  think  it 
right  that  it  should  be  released.    Unanimity 

'2  And  unfortunately  some  other  writers  who  are  not  Germans, 
e.g.,  Fiore,  Nouveau  Droit  Internationale,  Pt.  i.,  ch.  4. 


The  League  of  Nations  135 

is  requisite  to  the  extinction  of  a  treaty.  So 
tlie  Great  Powers  in  1870. 

Neither  doctrine  is  completely  satisfac- 
tory. The  one  presents  us  with  anarchy  in 
a  world  in  which  reliance  upon  the  faith  of 
the  written  word  is  dead;  the  other  is  con- 
demned by  its  rigidity  in  a  world  where  cir- 
cumstances are  always  changing. 

So  also  in  the  relations  of  man  to  man  the 
war  has  emphasized  the  fact  that  the  old 
rule  of  the  Common  Law  that  a  man  will 
be  held  to  the  performance  of  that  which 
he  has  unconditionally  undertaken  to  per- 
form is  not  all-sufficient.  New  circum- 
stances, the  coming  of  which  cannot  be  fore- 
seen, may  render  it  unjust  to  hold  a  man 
to  his  promise.  The  perpetuation  of  the 
status  quo  when  its  justification  is  gone  is 
perhaps  the  greatest  danger  of  observed 
treaties.      Austria    could   indefinitely   have 


136  A  Society  of  States 

prevented  the  unification  of  Italy.  The  nec- 
essary conjunction  of  elasticity  with  strict 
respect  for  the  pledged  word  may  be  found 
under  a  League  of  Nations  in  one  or  both 
of  two  ways.  Cases  in  wliich  in  the  opinion 
of  a  State  circumstances  have  so  changed 
that  a  treaty  should  be  abrogated  are 
eminently  suitable  for  reference  to  the 
Council  of  Conciliation.  It  would  be  pos- 
sible also  to  give  to  a  majority  of  the  sig- 
natories to  a  treaty  (not  necessarily  to  a 
bare  majority)  the  power  to  release  a  party 
from  his  engagements  Avhen  circumstances 
have  substantially  altered,  and  in  this  way 
to  make  juridicial  provision  for  necessaiy 


change. 


\S.    EQUALITY 


In  a  League  of  Nations  all  the  States 
composing  it  will  be  equal  in  a  way  they 


The  League  of  Nations  137 

were  not  before — equal  l)efore  the  law.  In 
the  vindieation  of  those  rights  whieh  are 
given  a  juridieal  basis  by  the  League  all 
States  will  be  equal;  for  before  the  law, 
whatever  the  disparity  of  power,  all  elaim- 
ants  are  equal  in  their  right  and  in  the 
remedy  to  maintain  that  right.  Under  the 
League  each  suitor  will  rely  not  only  on 
his  own  power  but  on  the  power  of  all  his 
colleagues.  The  small  State  will  no  longer 
sue  in  forma  pauperis.  "Law,"  wrote  the 
German  poet  Schiller  bitterly,  "is  the 
friend  of  the  weak." 

Whilst  equality  under  the  League  of 
Nations  will  have  more  reality  than  it  had 
in  1914,  States  will  still  not  be  in  fact  equal. 
]\Iunieipal  law  has  to  recognize  the  inequal- 
ity of  individuals — economic  inequality, 
intellectual  inequality  and  so  forth.  He 
that  can  bear  the   burden  must  bear   the 


138  A  Society  of  States 

burden,  and  he  that  is  subject  to  undue 
economic  pressure  must  be  protected.  In- 
ternational Law  also  must,  if  the  League 
is  to  be  a  success,  give  recognition 
to  international  facts.  Montenegro  will 
not,  as  at  the  Hague  Conferences,  have  an 
equal  vote  AA^ith  England  in  determining  the 
laws  of  naval  warfare.  A  consideration  of 
the  British  Empire  shows  the  absurdity  of 
"one  State  one  vote."  The  British  Empire 
whilst  it  remained  strong  in  miion  would 
only  have  one  vote;  if  it  were  weakened  by 
the  severance  of  the  legal  ties  which  bind 
Canada,  Australia,  and  South  Africa  to 
Great  Britain,  the  same  peoples  would  have 
four.  Representation  must  be  in  propor- 
tion to  power.^^    Municipal  law  is  observed 

^^  There  are,  however,  advocates  of  a  League  who  do  not 
accept  this  view.    The  question  of  the  best  machinery  to  give 


The  League  of  Nations  139 

because  it  is  made  and  it  is  enforced  in  ac- 
cordance with  the  will  of  those  that  have 
the  power.  At  first  the  League  will  have 
neither  strictly  legislative  nor  executive 
powers.  If  it  ever  obtains  them,  only  if  the 
legislative  and  the  executive  of  the  League 
of  Nations  answer  to  and  represent  the 
power  behind  the  League,  would  they 
achieve  their  purpose.  Legal  institutions 
are  ultimately  based  on  power.  For  law 
must  not  transcend  the  facts,  and  no  legal 
institution  that  is  not  supported  by  those 
who  have  the  power  for  the  time  being  has 
any  stability. 

effect  to  it  is  by  no  means  clear.  It  has  been  suggested  that 
voting  power  should  be  based  on  a  factor  derived  from  a  com- 
parison of  man  power  with  financial  and  economic  resources 
and  intellectual  and  moral  character.  This  is  too  complicated; 
but  it  is  difficult  to  find  a  system  of  representation  which  will 
do  justice  alike  to  the  British  Empire  and  France,  Belgium  and 
Russia. 


140  A  Society  of  States 

§4.    RIGHTS 

If  we  ask  what  changes  a  League  of 
Nations  would  make  in  the  alleged  rights 
of  the  sovereign  independent  State,  we  shall 
at  once  see  that  it  will  give  to  those  rights 
which  are  recognized  some  reality,  will 
transfer  them  from  the  text-hooks  to  the 
forum.  It  will  give  a  new  meaning  to  the 
word  "rights"  in  International  Law.  Jural 
relations  will  more  nearly  correspond  with 
the  actual  relations  of  States  in  practice. 
Even  if  we  cling  to  the  traditional  language 
of  the  jurist  and  the  puhlicist,  if  we  still 
speak  of  the  sovereign,  independent,  and 
equal  State,  those  words  will  have  gained 
a  new  fullness  of  meaning,  a  new  hody. 
For,  if  the  rights  are  recognized  under  a 
League  of  Nations,  they  will  be  enforceable 
— enforceable    by    the    combined    will    and 


The  League  of  Nations  141 

power  of  the  whole  League.  Law  follo^vs 
morality.  We  shall  have  reached  the  stage 
when  the  moral  rights  governing  the  rela- 
tions of  States  have  heen  converted  into 
legal  rights. 

§5.    SUMMARY 

If  for  a  moment  we  review  the  ground 
wliich  we  have  traversed,  we  shall  come  to 
the  conclusion  that  the  formation  of  a 
League  of  Nations  does  not  necessarily 
mean  any  radical  alteration  in  the  mochfied 
conceptions  of  sovereignt}'-,  independence, 
and  equality,  which  were  the  received  doc- 
trines of  the  nineteenth  century.  For  the 
nineteenth  century  recognized^*  that  Bel- 
gium remained  a  sovereign  independent 
State  in  spite  of  her  neutralization,  and  that 

"  Cf.,  e.g.,  Lawrence,  ubi  supra,   §  43,  p.  79.    Oppenheim, 
International  Law,  vol.  i.,  §  97. 


142  A  Society  of  States 

the  States  which  guaranteed  it  remained 
sovereign  independent  States  in  spite  of  the 
obHgations  which  they  had  taken  upon 
themselves.  Once  the  sovereignty  and  in- 
dependence of  Belgium  are  admitted,  it  is 
no  further  step  to  hold  that  the  State  wliich 
voluntarily  joins  a  League  to  keep  and  en- 
force the  peace,  and  so  voluntarily  to  that 
extent  surrenders  the  power  of  arbitrarily 
determining  its  future  course  of  action,  re- 
mains a  sovereign  and  independent  State. 

How  unsubstantial  the  fabric  of  these 
moral  rights  of  sovereignty  often  was  may 
be  seen  from  the  case  of  Turkey.  Since  the 
16th  century  by  a  series  of  arrangements 
known  as  the  Capitulations,  European  pow- 
ers had  withdrawn  their  nationals  in  Turkey 
from  the  jurisdiction  of  the  Turkish  Courts 
for  most  criminal  and  civil  purposes,  and 
justice  had  been  done  to  them  in  the  con- 


The  League  of  Nations  143 

sular  Courts  of  their  own  powers.     When, 
in  1856,  Turkey  was  admitted  to  the  family 
of    nations,    the    Capitulations    remained, 
although  one  of  the  State's  so-called  rights 
of    sovereignty    is    an    exclusive    authority 
over  all  persons,  things,  and  acts  within  its 
territory.    Rumania,  Serbia,  and  Japan  in 
the   same   way   have   all   been   subject   to 
Capitulations  when  sovereign  independent 
States.    Still  more  shadowy  was  the  sover- 
eignty or  suzerainty  of  Turkey  in  Egypt 
in  recent  years.     In  1911  it  was  still  offi- 
cially recognized  in  spite  of  the  English 
occupation;     but     Italy,     regarding    facts 
rather  than  theories,  treated  Egypt  as  neu- 
tral in  the  Italo-Turkish  War  of  that  year. 
Or  again  consider  the  case  of  Cracow. 
By  the  Treaty  of  1815  Cracow  was  declared 
to   be   independent,   and   its   independence 
was   guaranteed   by   Austria,   Russia,   and 


144  A  Society  of  States 

Prussia.  For  the  following  thirty  years  the 
Councils  of  this  independent  State  were 
habitually  influenced  by  the  guaranteeing 
powers.  Yet,  when  in  1846  Cracow  was 
annexed  by  Austria,  Great  Britain,  France, 
and  Sweden  protested  on  the  ground  that 
the  annexation  was  a  violation  of  the 
Treaty  of  1815.  It  is  a  just  inference  that 
the  fact  that  Cracow's  policy  was  not  its 
own  in  the  intervening  period  was  not  con- 
sidered as  altering  its  status  as  an  inde- 
pendent State. 

The  League  will,  however,  provide  a 
sanction  for  the  breach  of  obligations  for 
which  previously  there  was  no  sanction  and 
so  give  States  an  equality  in  fact  which  they 
have  never  before  possessed.  And  if  the 
future  prove  that  the  League  meets  a  human 
need  and  its  legislative  and  executive  power 


The  League  of  Nations  145 

is  extended,  it  may  well  be  that  we  shall 
have  an  example  of  divided  sovereignty  on 
an  incomparably  larger  scale  than  we  have 
ever  had  before. 


THE  FREE  SELF-GOVERNING 

STATE 


CHAPTER  IV 

ft 

The  Free  Self-governing  State 

IT  is  unnecessary,  therefore,  to  go  so  far 
as  the  American  Professor  who  pro- 
claims that  "we  shall  never  separate 
the  truth  from  vitiating  error  until  we  have 
broken  utterly  with  all  our  traditional  doc- 
trines of  the  State  in  terms  of  that  plausible 
philosophical  conception,  'sovereignty.' '" 
But  why  should  we  cling  to  this  old  jargon 
of  the  Court-house  and  the  Academy,  of 
the  platform  and  the  Chancelleries?  The 
use  of  clear  and  unambiguous  terms  is  al- 
most essential  to  clear  thinking.  One  of 
the  greatest  gifts  of  the  Greeks  to  the  de- 

1  Professor  Small,  of  Chicago,  in  Americans  and  the  World  Crisis. 

149 


150  A  Society  of  States 

velopment  of  philosophy  was  the  vocabu- 
lary with  which  they  endowed  it;  for  the 
terminology  compelled  clear  thought. 

Sovereignty,  independence,  and  equality 
are  vague  and  misleading  words  which  com- 
mon people  are  apt  to  understand  in  their 
primary  meaning  and  statesmen  and  pub- 
heists  use  in  a  very  different  sense.  They 
overlap;  sovereignty  adds  nothing  to  that 
which  is  already  given  by  independence.  It 
is,  as  another  American  writer^  has  recently 
said,  "futile  to  introduce  the  conception  of 
sovereignty  into  international  law."  We 
owe  our  modern  ideas  on  sovereignty  largely 
to  John  Austin,  but  that  master  of  clear 
analysis  admitted^  that  the  difficulty  adher- 
ing to  the  phrases  "sovereignty"  and  "inde- 
pendent society"  arose  "from  the  vagueness 

2  p.  A.  Brown  in  American  Journal  of  International  Law,  ix. 
326. 

»  Op.  dt,  p.  236. 


The  Free  Self -Governing  State     151 

or  indefiniteness  of  the  terms  in  which  the 
definition  or  rule  is  inevitably  conceived." 
The  nebulous  notions  of  sovereignty  and 
independence  have  clouded,  and  not  il- 
luminated, the  true  relations  of  States  in 
the  past.  It  is  no  less  necessary  for  legal 
science  to  conform  to  the  facts  of  human 
relations  than  it  is  for  grammatical  science 
to  conform  to  the  facts  of  language. 

Huxley,*  in  his  declining  years  looking 
back  upon  his  life,  declared  his  conviction, 
which  had  grown  with  his  gro\\i;h,  and 
strengthened  with  his  strength,  "that  there 
is  no  alleviation  for  the  sufferings  of  man- 
kind except  veracity  of  thought  and  of 
action,  and  the  resolute  facing  of  the  world 
as  it  is  when  the  garment  of  make-believe 
by  which  pious  hands  have  hidden  its  uglier 
features  is  stripped  off."    To  those  that  had 

*  In  his  Autobiography . 


152  A  Society  of  States 

eyes  to  see,  the  Germans  stripped  the  make- 
believe  from  sovereignty  and  independence; 
but,  instead  of  shuddering  at  the  horrible 
immorality  of  that  which  was  exposed,  they 
gloried  in  it.  It  is  for  us  an  act  of  coward- 
ice to  turn  away  our  eyes  from  the  truth 
which  has  been  revealed;  we  must  stead- 
fastly face  it,  and  make  it  our  resolve  to 
abandon  the  make-belief  with  which  in  the 
past  we  have  allowed  ourselves  to  be  de- 
ceived and,  knowing  the  evil,  to  shun  it. 

Human  relations  change:  International 
Law  is  an  evolutionary  science.  The  ideas 
of  sovereignty  and  the  rights  which  attach 
to  it  have  changed  in  the  past ;  there  is  every 
reason  to  believe  that  in  the  future  also 
they  will  be  modified.'  One  may  still  meet 
here  and  there  a  friend  who  will  deplore  the 
decadence  of  the  age  because  his  villagers 

6  Cf.  Jclhro  Brown,  op.  ciL,  p.  273. 


The  Free  Self-Governing  State     153 

or  his  employees  do  not  always  touch  their 
cap  to  him  when  they  meet  him.  But  the 
spirit  of  the  age  recognizes  that  our  friend's 
real  dignity  is  not  thereby  impaired.  The 
sense  of  values  has  become  different.  In  the 
not  so  very  distant  past  one  State  has  en- 
gaged another  in  war  because  that  other  had 
not  honored  its  flag  with  the  ceremonial  it 
expected,  and  kings  have  immolated  their 
peoples  for  their  dynastic  purposes.  To- 
day, even  at  the  close  of  the  most  bloody 
war  in  all  history,  war  between  the  Great 
Powers  for  such  a  reason  is  almost  un- 
thinkable. 

The  object  of  the  State  is  to  secure  the 
greatest  amount  of  freedom  possible  for  its 
citizen;  the  object  of  International  Society 
is  the  realization  of  the  freedom  of  separate 
nations;  for  freedom  is  "the  perfect  relation 


154  A  Society  of  States 

of  all  separate  rational  entities."®  The  ideal 
attainment  of  these  objects  we  call  Justice. 
These  are  ethical  propositions.  Law,  if 
it  conform  to  the  demands  of  Justice,  gives 
a  practical  application  to  Ethics.  Rights 
are  the  means  given  by  the  Law  for  the 
achicA^ement  of  freedom.  Now  freedom  de- 
mands a  recognition  of  the  freedom  of 
others :  the  assertion  of  the  absolute  suprem- 
acy or  independence  of  one  State  involves 
a  denial  of  freedom  to  every  other  State. 
Freedom  and  absolute  independence  are  ir- 
reconcileable.  Freedom  is  at  the  opposite 
pole  to  anarchy.  Hence,  it  has  been  said,^ 
that  the  unavoidable  paradox  of  State-ac- 
tion is  that  it  uses  force  to  create  freedom. 
In  order  to  attain  our  own  or  our  neigh- 
bour's real  and  ultimate  freedom  we  may 

*  Lorimer,  op.  cit.,  vol.  i.,  p.  1. 

^  Ernest  Barker,  op.  cit.,  p.  37.     CJ.  Rousseau,  Contrat  Social, 
i..7. 


The  Free  Self -Governing  State     155 

have  to  encroach  upon  our  own  or  our 
neighbour's  proximate  and  apparent  free- 
dom. The  members  of  a  League  of  Nations 
will  gain  their  freedom  at  the  cost  of  their 
apparent  independence;  for  freedom  can 
come  only  under  the  Law.  If  a  League  of 
Nations  achieves  its  object,  it  will  introduce 
the  reign  of  Law  in  place  of  the  reign  of 
Might,  and  International  Law  will  repre- 
sent, no  longer  an  ethical  aspiration,  but  the 
actual  relations  of  inter-dependent  States. 
The  rights  of  the  State  will  be  legal  rights 
inherent  in  it  as  a  member  of  the  Society 
which  recognizes  those  rights. 

The  problem  is  that  presented  by  Hobbes' 
picture  of  man  in  the  state  of  nature.  The 
solution  is  that  found  by  Rousseau  for 
Hobbes'  problem.  The  problem  is  "to  find 
a  form  of  associatic«i,  which  defends  and 
protects   with   all   the    force   of   the   com- 


156  A  Society  of  States 

munity  the  person  and  property  of  each 
associate,  and  by  which  each  one  uniting 
with  all  obeys  only  himself,  and  remains  as 
free  as  he  was  before."  The  solution  is  that 
"each  of  us  puts  in  common  his  person  and 
all  his  power  under  the  supreme  direction 
of  the  general  will;  and  we  receive  again 
each  member  as  an  indivisible  part  of  the 
whole.  ...  In  a  word,  each  giving  himself 
to  all  gives  himself  to  none;  each  associate 
acquires  over  others  the  same  right  which 
he  yields  over  himself;  he  gains  the  equiv- 
alent of  all  that  he  loses,  and  with  it  greater 
force  to  keep  what  he  has."^ 

The  doctrine  of  the  Social  Contract  as  an 
account  of  the  historical  genesis  of  the  State 
is  palpably  false;  its  logical  truth  as  an 
explanation  of  the  State  in  being  is  not 
thereby  impugned.    If  a  League  of  Nations 

8  Rousseau,  Contrat  Social,  i.,  4. 


The  Free  Self-Governing  State     157 

or  a  Society  of  States  is  created,  the  Social 
Contract  will  give  both  the  historical  and  the 
logical  explanation  of  the  new  order  of  in- 
ternational relations. 

We  shall  do  well,  then,  not  to  lay  stress 
upon  the  independence  of  States  but  upon 
their  interdependence,  not  upon  their  ex- 
ternal but  upon  their  internal  sovereignty. 
We  shall  speak  not  of  the  sovereign  inde- 
pendent State  but  of  the  Free  Self-Govern- 
ing State. 

If  we  apply  the  same  test  to  the  concep- 
tion of  the  free  self-governing  State  that 
we  have  already  applied  to  the  sovereign 
independent  State  we  shall  find  the  key 
alike  to  the  rights  and  duties  of  the  State 
in  the  Golden  Rule — "Whatsoever  ye  would 
that  men  should  do  to  you  do  ye  even  so 
to  them;  for  this  is  the  law  and  the 
prophets,"  and  in  its  negative  form,  "Do 


158  A  Society  of  States 

not  that  unto  others  which  ye  would  not 
that  they  should  do  unto  you."  In  virtue 
of  its  freedom  the  State  will  have  the  right 
to  take  all  necessary  measures  to  preserve 
its  own  corporate  life,  the  right  to  extend 
its  dominions  or  influence,  the  right  to  con- 
trol its  own  trade,  the  right  to  decide  for 
itself  by  whom  and  in  what  manner  it  shall 
be  governed;  the  right  to  determine  what 
privileges  shall  be  attached  to  its  citizenship 
and  who  shall  be  admitted  to  those  privi- 
leges, and  the  right  to  make  treaties  or  con- 
ventions with  whom  it  will,  provided  in  each 
case  that  its  action  is  consistent  with  the 
like  rights  inherent  in  other  States  and  with 
any  special  engagements  by  which  it  is 
bound  to  other  States.  These  limitations 
are  imposed  by  the  very  nature  of  freedom ; 
for  the  freedom  of  one  implies  the  freedom 
of  all,  and  the  obligatory  force  of  treaties 


The  Free  Self-Governing  State     159 

springs  from  the  freedom  of  the  will  which 
consents  to  their  making. 

By  reason  of  the  fact  that  it  is  self-gov- 
erning the  State  will  have  an  exclusive 
authority  over  all  persons,  things  and  acts 
within  its  territory;  it  will  make  its  own 
laws,  and  enforce  them  itself,  it  will  admin- 
ister its  own  justice,  it  will  impose  its  own 
taxes  and  apply  its  revenue  as  it  pleases, 
it  will  regulate  the  life  of  its  own  citizens 
and  of  all  foreigners  who  may  be  in  its 
dominions.  It  will  still  be  able  to  enforce 
its  own  laws  against  its  own  citizens  who 
are  abroad  when  they  return  within  its  own 
jurisdiction.  The  only  derogations  from  its 
exclusive  authority  in  this  regard  will  be 
those  to  which  it  has  freely  submitted  by 
any  special  engagements  into  which  it  may 
have  entered  with  other  States.  And  these, 
it  may  be  safely  conjectured,  will  be  only 


160  A  Society  of  States 

such  as  for  the  conveniency  of  government 
and  the  promotion  of  justice  and  morahty 
give  a  reciprocal  recognition  of  rights 
created  by  municipal  law.  National  moral- 
ity is  aided  by  the  recognition  of  a  French 
marriage  as  binding  in  England,  and  an 
English  marriage  as  binding  in  France,  and 
extradition  treaties  make  for  the  establish- 
ment of  justice. 


THE  ULTIMATE  AIM  OF  INTER- 
NATIONAL ORGANIZATION 


CHAPTER  V 

The  Ultimate  Aim  of  International 
Organization 

A  WISE  and  eloquent  writer,  Profes- 
sor Ramsay  Muir,  has  said^  that 
whereas  "internationahsm  is  depend- 
ent upon  nationalism  .  .  .  internationalism 
is  necessary  as  the  fulfilment  of  nationalism. 
The  two  are  as  mutually  dependent  as 
Liberty  and  Law."  The  goal  to  which 
history  is  painfully  making  its  wslv  is  the 
reconciliation  of  cosmopolitanism  with  pa- 
triotism. The  goal  will  be  won  when  na- 
tional freedom  of  action  is  vindicated,  not 
apart  from,  but  in  and  through,  the  recog- 

*  Nationalism  and  Internationalism,  p.  223. 
163 


164  A  Society  of  States 

nition  of  international  dependence.  Then 
no  longer  shall  we  deem,  as  Treitschke 
deemed,  the  glory  of  a  State  to  lie  in  the 
strength  of  its  egotism,  but  rather  in  the 
loyalty  of  its  co-operation  with  other  States 
in  safeguarding  freedom.  International 
order  will  be  based  on  the  permanent  satis- 
faction of  national  aspirations. 

The  League  of  Nations  will  help  to  this 
end.  At  first  it  can  be  only  a  cautious 
movement  in  the  right  direction.  War 
under  the  schemes  put  before  us  is  not  only 
a  police  measure.  The  State  is  left  at 
liberty  to  make  war  for  what  it  thinks  suffi- 
cient cause  at  its  own  discretion,  provided 
the  dispute  is  not  susceptible  of  judicial  de- 
cision and  provided  the  point  at  issue  has 
first  been  submitted  to  the  good  offices  of 
other  powers  for  mediation.  But  when  we 
think  of  the  capricious  nature  of  the  judg- 


Aim  of  International  Organization     165 


to* 


ments  given  by  War,  and  of  the  human  loss 
and  suffering  involved  in  the  bloody  deci- 
sion of  the  battlefield,  then  we  feel  that  soon, 
if  a  League  be  once  formed,  war  will  be 
recognized  as  justified  only  when  it  is  used 
by  the  common  purpose  of  the  Society  of 
Nations  to  prevent  and  punish  the  aggressor 
against  international  law  and  order — 


*'t3' 


"Oh !  then  a  longing  like  despair 
Is  to  their  farthest  caverns  sent ; 
For  surely  once,  they  feel,  we  were 
Parts  of  a  single  continent !" 


THE  LEAGUE  OF  NATIONS  AND 
THE  MAKING  OF  THE 
AMERICAN  CON- 
STITUTION 


APPENDIX  I 

The  League  of  Nations  and  the  Making 
OF  THE  American  Constitution 

1HAVE  not  attempted  in  this  book  to 
state  the  case  for  a  League  of  Nations, 
to  show  the  need  for  it  or  that  it  will 
accomplish  its  purpose.  Nor  have  I  at- 
tempted to  give  the  pros  and  cons  of  tliis 
or  that  variation  in  the  forms  which  the 
League  may  take.  Still  less  has  it  been  my 
object  to  cast  doubts  upon  the  end  at  which 
it  aims  or  to  seek  for  and  expound  the  diffi- 
culties which  stand  in  the  way  of  the  realiza- 
tion of  its  purpose.  This  short  note  there- 
fore seems  properly  relegated  to  an  Ap- 
pendix. 

169 


170  A  Society  of  States 

So  far  as  I  can  remember,  the  analogy 
between  the  problem  now  confronting  the 
British,  French,  and  American  Govern- 
ments and  that  which  confronted  the 
framers  of  the  Constitution  of  the  United 
States  has  not  been  fully  considered.  Yet 
tlie  difficulties  and  controversies  of  1918 
have  many  resemblances  to  those  of  1781- 
1789,  which  so  largely  centred  round  the 
question  of  sovereignty  that  it  would  not  be 
right  to  omit  all  reference  in  this  book  to 
that  epoch-making  campaign. 

A  hundred  and  thirty  years  ago  the  pro- 
posals for  the  loss  or  diminution  of  the 
sovereignty  of  the  Thirteen  States  excited 
a  bitterness  which  fortunately  has  so  far  for 
the  most  part  been  missing  in  the  discus- 
sions of  a  League  of  Nations.  The  articles 
of  Alexander  Hamilton  and  James  Madi- 
son in  The  Federalist  were  a  decisive  factor 


Appendix  I  171 

in  winning  acceptance  for  the  Constitution 
in  the  face  of  that  bitterness.  But  for  those 
articles  the  Union  might  never  have  been 
achieved;  a  weight,  therefore,  seldom  ac- 
corded to  the  opinions  of  statesmen  attaches 
to  those  to  which  expression  was  given  in 
the  pages  of  Hamilton's  famous  periodical. 
I'or  of  Hamilton  and  Madison  it  may  be 
said  that  as  their  courage  was  justified  by 
the  accomplisliment  of  their  immediate  pur- 
pose in  their  lifetime,  so  their  political  in- 
sight was  vindicated  by  the  permanency  of 
that  which  they  had  built. 

Advocates  and  opponents  of  the  League 
of  Nations  may  alike  quarry  profitably  for 
weapons  for  their  armoury  in  The  Federal- 
ist (especially  in  Nos.  9,  15-22  and  41-45). 

For  those  who  dislike  the  idea  of  a  League 
of  Nations  it  is  indeed  a  happy  hunting- 
ground.    For  it  was  Hamilton's  purpose  to 


172  A  Society  of  States 

persuade  the  Thirteen  States  to  abandon  in 
favour  of  a  Federal  Union  the  loose  Con- 
federation completed  in  1781.  It  is  not 
surprising,  therefore,  to  find  that  he  has 
many  hard  things  to  say  of  Confederations, 
and  indeed  numbers  17  to  20  are  devoted 
to  a  destructive  examination  of  historical 
examples.  Amongst  other  defects  in  the 
form  of  political  organization  he  instances 
the  following.  The  commands  of  the  Con- 
federacy, even  when  in  theory  binding  on 
the  separate  States,  are  apt  in  practice  to 
be  mere  recommendations  which  the  States 
observe  or  disregard  at  their  option.  Owing 
to  the  nature  of  sovereign  power,  there  is 
an  eccentric  tendency  amongst  the  lesser 
sovereignties  to  fly  off  from  the  common 
centre.  The  Union  which  is  intended  to 
preserve  peace  is  in  fact  the  cause  or  the 
occasion   of  constant   bickerings,   quarrels, 


Appendix  I  173 

and  even  war.  Again  the  demand  for 
unanimity  amongst  a  number  of  different 
wills  prevents  prompt  or  effective  action, 
and  subjects  the  essential  interests  of  the 
whole  to  the  caprice  or  corruption  of  a  single 
member.  In  fine,  "the  great  and  radical 
vice"  in  the  construction  of  a  Confederation 
is  that  it  creates  "the  political  monster  of  an 
imperium  in  imperio^'  (No.  15).  "The  im- 
portant truth,"  he  says  elsewhere  (No. 
20),  "is  that  a  sovereignty  over  sovereigns, 
a  government  over  governments,  a  legisla- 
tion for  communities,  as  contradistinguished 
from  individuals,  as  it  is  a  solecism  in  theory, 
so  in  practice  it  is  subversive  of  the  order 
and  ends  of  civil  polity,  by  substituting 
violence  in  place  of  law,  or  the  destructive 
coercion  of  the  sword  in  place  of  the  mild 
and  salutory  coercion  of  the  magistracy." 
And  Madison  (No.  42)   speaks  of  the  en- 


174  A  Society  of  States 

deavour  "to  accomplish  impossibilities;  to 
reconcile  a  partial  sovereignty  in  the  Union 
with  complete  sovereignty  in  the  States;  to 
subvert  a  mathematical  axiom  by  taking 
away  a  part  and  letting  the  whole  remain." 
These  arguments  presented  with  elo- 
quence and  knowledge  may  at  first  fill  with 
despair  those  who  see  in  a  League  of  Nations 
the  only  hope  for  the  future  of  civilization. 
Yet  they  will  also  find  in  The  Federalist 
valuable  support  and  grounds  for  encour- 
agement. In  the  first  place  it  is  clear  that 
neither  Hamilton  nor  Madison  believed  in 
the  time-honoured  doctrine  of  the  indivisi- 
bility of  sovereignty.  Still  more  will  these 
"visionaries"  take  courage  from  the  victory 
and  the  beneficent  results  of  the  victory  won 
by  the  Federalists  over  "the  inordinate  pride 
of  State  importance."  The  American  Con- 
stitution is  the  living  memorial  of  the  vie- 


Appendix  I  175 

tory  won  by  the  fresh  and  invigorating  ideas 
of  young  men  over  the  interested,  short- 
sighted and  narrow-minded  opposition  of 
pedantic  older  men. 

There  is  another  important  consideration. 
When  we  weigh  the  views  of  Hamilton  and 
IMadison,  we  must  not  lose  sight  of  the  dif- 
ference bet^veen  their  object  and  ours  or 
between  the  circumstances  in  which  they 
were  working  and  those  in  which  we  find 
ourselves.  Their  object  was  to  create  a 
nation;  the  object  of  a  League  of  Nations 
is,  not  to  create  a  nation  but  to  create  a 
League  between  independent  nations  for 
certain  defined  purposes.  It  is  doubtful 
whether  Hamilton  would  have  considered 
this  either  absurd  or  impracticable  (cf.  No. 
89).  The  Federalists  were  concerned  to 
draw  tighter  the  bonds  of  union  which  had 
already  been  tied,  and  to  strengthen  a  co- 


176  A  Society  of  States 

operation  already  begun.  The  European 
States  have  not  yet  reached  the  "jumping- 
off  point"  of  the  framers  of  the  American 
Constitution. 

Further,  since  Hamilton's  days  history 
shows  us  modern  instances,  and  of  these  the 
greatest  is  the  British  Empire.  Mr. 
Hughes,  the  Prime  Minister  of  Australia, 
has  spoken,  not  once  but  many  times,  of 
Australia  as  an  independent  State;  counsel 
for  the  Canadian  Government  has  opposed 
an  application  before  the  International 
Joint  Waterways  Commission  on  the  ground 
that  the  application  involved  an  invasion  of 
its  treaty-rights,^  and  the  War  Cabinet  has 
recentlv  decided  that  henceforth  communi- 
cations  between  the  Government  of  Canada 
and  Great  Britain  shall  go  direct  instead  of 
through  the  Colonial  Office  and  the  Gov- 

*  Law  Times,  vol.  145,  p.  404. 


Appendix  I  177 

ernor.  Metternich  said  that  no  sovereign 
could  afford  to  give  away  a  particle  of  his 
sovereignty.  Professor  Pollard  neatly  com- 
ments:" "We  may  not  give  it  away,  but  we 
lease  it  to  the  Dominions  and  get  a  hand- 
some return."  We  are,  General  Smuts  has 
said,  "not  a  State  but  a  community  of  States 
and  nations  ...  a  whole  world  by  ourselves 
consisting  of  many  nations,  of  many  States 
and  all  sorts  of  communities  under  one  flag." 
Many  of  the  criticisms  which  Hamilton 
levelled  against  Confederacies  might  be 
levelled  against  the  fabric  of  the  British 
"Empire" — a  Commonwealth  wliich  has 
proved  itself  alike  in  war  and  peace. 

Finally,  it  is  possible  that  had  there  been 
no  Confederation  in  1781  there  would  have 
been  no  Federal  State  in  1789.  It  is  no 
less  possible  that  the  League  of  Nations 

-  The  Commonwealth  at  War,  ch.  16,  p.  226. 


178  A  Society  of  States 

may  prove  a  stepping-stone,  necessary  in  its 
day,  to  some  closer  union  of  the  civilized 
States  of  the  world.  For  at  the  moment, 
as  Mr.  Lowes  Dickinson  has  said,  "the  prob- 
lem is  to  find  the  greatest  measure  of  or- 
ganization \^^llich  the  state  of  feeling  and 
intelligence  after  the  war  will  tolerate."^ 
Few  would  suggest  that  the  League  of 
Nations  in  its  present  form  is  the  final  solu- 
tion: we  most  of  us  believe  that  it  is  the 
right  step  to  take  next. 

»  The  Choice  Before  Us,  ch.  10,  p.  172. 


SCHEMES  FOR  A  LEAGUE  OF 
NATIONS 


APPENDIX  II 

Schemes  for  a  League  of  Nations^ 

i.  the  platform  of  the  league  of 
nations  society 

(1,  Central  Buildings,  Westminster,  S.  W.  I) 

THE  objects  of  the  Society  shall  be  to 
advocate : 

1.  That  a  Treaty  shall  be  made 
as  soon  as  possible  whereby  as  many  States 
as  are  willing  shall  form  a  League  binding 

1  Full  particulars  of  five  other  schemes  will  be  found  in  L.  S. 
Woolf's  The  Framework  of  a  Lasting  Peace.  The  late  Lord 
Parker  of  Waddington  propounded  a  working  scheme  in  his 
speech  in  the  House  of  Lords  on  March  19th,  1918.  It  was 
not  fully  reported  in  the  Press  and  must  be  read  in  the  official 
Parliamentary  Debates.  There  is  an  admirable  account  of 
earlier  plans  with  the  same  object,  such  as  the  "Grand  Design" 
in  Lorimer's  Institutes  of  the  Law  of  Nations,  Bk.  v.,  ch.  7,  and 

181 


182  A  Society  of  States 

themselves  to  use  peaceful  methods  for 
dealing  with  all  disputes  arising  among 
them. 

2.  That   such  methods  shall   be  as   fol- 
lows : 

(a)  All  disputes  arising  out  of  ques- 
tions of  international  law  or  the  interpre- 
tation of  Treaties  shall  be  referred  to  the 
Hague  Court  of  Arbitration,  or  some 
other  Judicial  Tribunal,  whose  decisions 
shall  be  final,  and  shall  be  carried  into 
effect  by  the  parties  concerned. 

(b)  All  other  disputes  shall  be  referred 
to  and  investigated  and  reported  upon  by 
a  Council  of  Inquiry  and  Conciliation, 

Professor  Pollard  published  during  the  summer  a  brightly- 
written  pamphlet — The  League  of  Nations  in  History — on  the 
same  subject.  An  English  translation  of  Rousseau's  Extrait 
du  Projet  de  Paix  perpeluelle  dc  M.  L'Abbe  dc  St.  Pierre  was  issued 
by  Messrs.  Constable  in  1917  under  the  title,  A  Lasting  Peace 
and  the  State  of  War. 


Appendix  II  183 

the  Council  to  be  representative  of  the 
States  which  form  the  League. 

3.  That  the  States  which  are  members  of 
the  League  shall  unite  in  any  action  neces- 
sary for  ensuring  that  every  member  shall 
abide  by  the  terms  of  the  Treaty;  and  in 
particular  shall  jointly  use  forthwith  both 
their  economic  and  military  forces  against 
any  one  of  their  number  that  goes  to  war, 
or  commits  acts  of  hostility  against  another, 
before  any  question  arising  shall  be  sub- 
mitted as  provided  in  the  foregoing  Articles. 

4.  That  the  States  which  are  members  of 
the  League  shall  make  provision  for  mutual 
defence,  diplomatic,  economic  and  military, 
in  the  event  of  any  of  them  being  attacked 
bj^  a  State,  not  a  member  of  the  League, 
which  refuses  to  submit  the  case  to  an  ap- 
propriate Tribunal  or  Council. 


184  A  Society  of  States 

5.  That  conferences  between  the  members 
of  the  League  shall  be  held  from  time  to 
time  to  consider  international  matters  of  a 
general  character,  and  to  formulate  and 
codify  rules  of  international  law,  which,  un- 
less some  member  shall  signify  its  dissent 
within  a  stated  period,  shall  hereafter  govern 
in  the  decisions  of  the  Judicial  Tribunal 
mentioned  in  Article  2  (a). 

6.  That  any  civilized  State  desiring  to 
join  the  League  shall  be  admitted  to  mem- 
bership. 

II.    THE  PLATFORM  OF  THE  LEAGUE  TO 
ENFORCE  PEACE 

(507  5th  Avenue,  New  York  City,  U.  S.  A.) 

We  believe  it  to  be  desirable  for  the 
United  States  to  join  a  League  of  Nations 
binding  the  signatories  to  the  following: 


Appendix  II  185 

First:  All  justiciable  questions  arising  be- 
tween the  signatory  Powers,  not  settled  by 
negotiation,  shall,  subject  to  the  limitations 
of  treaties,  be  submitted  to  a  judicial 
tribunal  for  hearing  and  judgment,  both 
upon  the  merits  and  upon  any  issue  as  to 
its  jurisdiction  of  the  question. 

Second:  All  other  questions  arising  be- 
tween the  signatories  and  not  settled  by 
negotiation,  shall  be  submitted  to  a  Council 
of  Conciliation  for  hearing,  consideration 
and  recommendation. 

Third:  The  signatory  Powers  shall  jointly 
use  forthwith  both  their  economic  and  mili- 
tary forces  against  any  one  of  their  number 
that  goes  to  war,  or  commits  acts  of  hos- 
tility, against  another  of  the  signatories 
before  any  question  arising  shall  be  submit- 
ted as  provided  in  the  foregoing. 


186  A  Society  of  States 

Fourth:  Conferences  between  the  sig- 
natory Powers  shall  be  held  from  time  to 
time  to  formulate  and  codify  rules  of  inter- 
national law,  wliich  unless  some  signatory 
shall  signify  its  dissent  w^ithin  a  stated 
period,  shall  thereafter  govern  in  the  deci- 
sions of  the  Judicial  Tribunal  mentioned  in 
Article  One. 


PRESIDENT  WILSON'S  PRO- 
GRAMME 


APPENDIX  III 

President  Wilson's  Programme^ 
2Sth  May,  1916:  Washington 

ONLY  when  the  great  nations  of  the 
world  have  reached  some  sort  of 
agreement  as  to  what  they  hold  to 
be  fundamental  for  their  common  interest, 
and  as  to  some  feasible  method  of  acting  in 
concert  when  any  nation  or  group  of  nations 
seeks  to  disturb  those  fundamental  things, 
can  we  feel  that  civilization  is,  at  last,  in 

*  This  collection  of  extracts  from  President  Wilson's  speeches 
and  notes  is  limited  to  the  more  important  pronouncements 
bearing  immediately  upon  the  topic  of  this  book.  It  does  not 
profess  to  illustrate  the  whole  of  the  President's  Peace  Terms 
or  of  his  programme  for  the  future. 

189 


190  A  Society  of  States 

a  way  of  justifying  its  existence  and  claim- 
ing to  be  finally  established. 

It  is  clear  that  nations  must  in  the  future 
be  governed  by  the  same  high  code  of  hon- 
our that  we  demand  of  individuals. 

Repeated  utterances  of  the  leading  states- 
men of  most  of  the  great  nations  now  en- 
gaged in  war  have  made  it  plain  that  their 
thought  has  come  to  this — ^that  the  principle 
of  public  right  must  henceforth  take  pre- 
cedence over  the  individual  interests  of 
particular  nations,  and  that  the  nations  of 
the  world  must  in  some  way  band  them- 
selves together  to  see  that  that  right  prevails 
as  against  any  sort  of  selfish  aggression; 
that  henceforth  alliance  must  not  be  set  up 
against  alliance,  understanding  against  un- 
derstanding, but  that  there  must  be  a  com- 
mon agreement  for  a  common  object,  and 
that  at  the  heart  of  that  common  object 


Appendix  III  191 

must  lie  the  inviolable  rights  of  peoples  and 
of  mankind. 

In  the  dealings  of  nations  with  one  an- 
other arbitrary  force  must  be  rejected,  and 
we  must  move  forward  to  the  thought  of 
the  modern  world,  the  thought  of  which 
peace  is  the  very  atmosphere. 

We  believe  these  fundamental  things: 

First,  that  every  people  has  a  right  to 
choose  the  sovereignty  under  A\'hich  they 
shall  live. 

Second,  that  the  small  States  of  the  world 
have  a  right  to  enjoj^  the  same  respect  for 
their  sovereigntj^  and  for  their  territorial 
integrity  that  great  and  powerful  nations 
expect  and  insist  upon. 

And  third,  that  the  world  has  a  right  to 
be  free  from  every  disturbance  of  its  peace 
that  has  its  origin  in  aggression  and  disre- 
gard of  the  rights  of  peoples  and  nations. 


192  A  Society  of  States 

So  sincerely  do  we  believe  in  these  things 
that  I  am  sure  that  I  speak  the  mind  and 
wish  of  the  people  of  America  when  I  say 
that  the  United  States  is  willing  to  become 
a  partner  in  any  feasible  association  of  na- 
tions formed  in  order  to  reahze  these  objects 
and  make  them  secure  against  violation. 

There  is  nothing  that  the  United  States 
wants  for  itself  that  any  other  nation  has. 
We  are  willing,  on  the  contrary,  to  limit 
ourselves  along  with  them  to  a  prescribed 
course  of  duty  and  respect  for  the  rights  of 
others,  which  will  check  any  selfish  passion 
of  our  own  as  it  will  check  any  aggressive 
impulse  of  theirs. 

If  it  should  ever  be  our  privilege  to  sug- 
gest or  initiate  a  movement  for  peace  among 
the  nations  now  at  war,  I  am  sure  that  the 
people  of  the  United  States  would  wish 
their  Government  to  move  along  the  line  of 


Appendix  III  193 

a  universal  association  of  the  nations  to 
maintain  the  inviolate  security  of  the  high- 
way of  the  seas  for  the  common  and  un- 
hindered use  of  all  the  nations  of  the  world, 
and  to  prevent  any  war  begun  either  con- 
trary to  treaty  covenants  or  without  warn- 
ing, and  full  submission  of  the  causes  to  the 
opinion  of  the  world — a  virtual  guarantee 
of  territorial  integrity  and  political  inde- 
pendence. 

I  feel  that  the  world  is  even  now  upon 
the  eve  of  a  great  consummation,  when  some 
common  force  will  be  brought  into  existence 
which  shall  safeguard  right  as  the  first  and 
most  fundamental  interest  of  all  peoples  and 
all  governments,  when  coercion  shall  be 
summoned  not  to  the  service  of  political 
ambition  or  selfish  hostility,  but  to  the  ser- 
vice of  a  common  order,  a  conmion  justice, 
and  a  common  peace. 


194  A  Society  of  States 

God  grant  that  the  dawn  of  that  day  of 
frank  dealing  and  of  settled  peace,  concord, 
and  co-operation  may  be  neai*  at  hand ! 

2nd  September,  1916 

No  nation  can  any  longer  remain  neutral 
as  against  any  wilful  disturbance  of  the 
peace  of  the  world.  The  effects  of  war  can 
no  longer  be  confined  to  the  areas  of  battle. 
No  nation  stands  wholly  apart  in  interest 
when  the  life  and  interest  of  all  nations  are 
thrown  into  confusion  and  peril.  If  hope- 
ful and  generous  intercourse  is  to  be  re- 
newed, if  the  healing  and  helpful  arts  of 
life  are  indeed  to  be  revived  when  peace 
comes  again,  a  new  atmosphere  of  justice 
and  friendship  must  be  generated  by  means 
the  world  has  never  tried  before.  The  na- 
tions   of    the    world    must    unite    in    joint 


Appendix  III  195 

guarantees  that,  whatever  is  done  to  disturb 
tlie  whole  world's  life,  must  first  be  tested 
in  the  court  of  the  whole  world's  opinion 
before  it  is  attempted  to  secure  this  end. 

5th  October,  1916 

We  want  all  the  world  to  know  that 
Americans  are  ready  in  years  to  come  to 
lend  our  force  without  stint  to  the  presenta- 
tion of  peace  in  the  interests  of  mankind. 
The  world  is  no  longer  divided  into  little 
circles  of  interest.  The  world  no  longer 
consists  of  neighbourhoods.  The  whole  is 
linked  together  in  a  common  life  and  inter- 
est such  as  humanity  never  saw  before,  and 
the  starting  of  wars  can  never  again  be  a 
private  and  individual  matter  for  nations.^ 

2  Qucsre:  Does  President  Wilson  desire  to  make  acceptance 
of  the  decisions  of  the  League  on  non-justiciable  questions  en- 
forceable by  the  power  of  the  League? 


196  A  Society  of  States 

22nd  January,  1917:  Washington 

In  every  discussion  of  the  peace  that  must 
end  tliis  war  it  is  taken  for  granted  that 
peace  must  be  followed  by  definite  concert 
of  the  Powers  which  w^ill  make  it  virtually 
impossible  that  any  such  catastrophe  should 
ever  overwhelm  us  again.  Every  lover  of 
mankind,  every  sane  and  thoughtful  man, 
must  take  that  for  granted.  .  .  . 

It  will  be  absolutely  necessary  that  a 
force  be  created  as  a  guarantor  of  the  per- 
manency of  the  settlement  so  much  greater^ 
than  the  force  of  any  nation  now  engaged 
or  any  alliance  liitherto  formed  or  projected, 
that  no  nation,  no  probable  combination  of 
nations,  could  face  or  withstand  it.  If  the 
peace  presently  to  be  made  is  to  endure,  it 

'  Qnwre:    Absolutely    or    relatively?     In    view    of    President 
Wilson's  statements  on  disarmament  presumably  the  latter. 


Appendix  III  197 

must  be  a  peace  made  secure  by  the  organ- 
ized major  force  of  mankind.  .  .  . 

The  equality  of  nations  upon  which  peace 
must  be  founded,  if  it  is  to  last,  must  be  an 
equality  of  rights ;  the  guarantees  exchanged 
nmst  neither  recognize  nor  imply  a  differ- 
ence between  big  nations  and  small;  be- 
tween those  that  are  powerful  and  those 
that  are  weak.  Right  must  be  based  upon 
the  common  strength,  not  upon  the  indi- 
vidual strength,  of  the  nations  upon  whose 
concert  peace  will  depend. 

Equality  of  territory  or  of  resources 
there,  of  course,  cannot  be ;  nor  in  any  other 
sort  of  equality  not  gained  in  the  ordinary 
peaceful  and  legitimate  development  of  the 
peoples  themselves.  But  no  one  asks  or 
expects  more  than  an  equality  of  rights. 
JNIankind  is  looking  now  for  freedom  of  life, 
not  for  equipoises  of  power. 


198  A  Society  of  States 

And  there  is  a  deeper  thing  involved  than 
even  equahty  of  right  among  organized 
nations. 

No  peace  can  last,  or  ought  to  last,  which 
does  not  recognize  and  accept  the  principle 
that  Governments  derive  all  their  just  pow- 
ers from  the  consent  of  the  governed,  and 
that  no  right  anywhere  exists  to  hand 
peoples  about  from  potentate  to  potentate 
as  if  they  were  property.  .  .  . 

So  far  as  practicable,  moreover,  every 
great  people  now  struggling  towards  a  full 
development  of  its  resources  and  of  its 
powers  should  be  assured  a  direct  outlet  to 
the  great  highways  of  the  sea. 

Where  this  cannot  be  done  by  the  cession 
of  territory,  it  no  doubt  can  be  done  by  the 
neutralization  of  direct  rights  of  way  under 
the  general  guarantee  which  will  assure  the 
peace  itself.     With  a  right  comity  of  ar- 


Appendix  III  199 

rangement  no  nation  need  be  shut  away 
from  free  access  to  the  open  paths  of  the 
world's  commerce. 

And  the  paths  of  the  sea  must  alike  in 
law  and  in  fact  be  free.  The  freedom  of 
the  seas  is  the  sine  qua  non  of  peace, 
equality,  and  co-operation. 

No  doubt  a  somewhat  radical  reconsid- 
eration of  many  of  the  rules  of  international 
practice  hitherto  thought  to  be  established 
may  be  necessary  in  order  to  make  the  seas 
indeed  free  and  common  in  practically  all 
circumstances  for  the  use  of  mankind;  but 
the  motive  for  such  changes  is  convincing 
and  compelling.  There  can  be  no  trust  or 
intimacy  between  the  peoples  of  the  w^orld 
without  them.  The  free,  constant,  unthreat- 
ened  intercourse  of  nations  is  an  essential 
part  of  the  process  of  peace  and  of  develop- 
ment.    It  need  not  be   difficult   either  to 


200  A  Society  of  States 

define  or  to  secure  the  freedom  of  the  seas 
if  the  Governments  of  the  world  sincerely 
desire  to  come  to  an  agreement  concern- 
ing it. 

It  is  a  problem  closely  connected  with  the 
limitation  of  naval  armaments  and  the  co- 
operation of  the  navies  of  the  world  in 
keeping  the  seas  at  once  free  and  safe,  and 
the  question  of  limiting  naval  armaments 
opens  the  wider  and  perhaps  more  difficult 
question  of  the  limitation  of  armies  and  of 
all  programmes  of  military  preparation. 
Difficult  and  delicate  as  these  questions  are, 
they  must  be  faced  with  the  utmost  candour 
and  decided  in  a  spirit  of  real  accommoda- 
tion, if  peace  is  to  come  with  healing  in  its 
wings,  and  come  to  stay.  Peace  cannot  be 
had  without  concession  and  sacrifice. 

There  can  be  no  sense  of  safety  and 
equality   among   the   nations   if   great   and 


Appendix  III  201 

preponderating  armaments  are  hencefortli 
to  continue  here  and  there  to  be  built  up 
and  maintained.  The  statesmen  of  the 
worhl  must  plan  for  peace,  and  nations  must 
adjust  and  accommodate  their  policy  to  it, 
as  they  have  planned  for  war  and  made 
ready  for  pitiless  contest  and  rivalry. 

The  question  of  armaments  whether  on 
land  or  sea  is  the  most  immediately  and  in- 
tensely practical  question  connected  with 
the  future  fortunes  of  nations  and  of  man- 
kind. 

5th  March,  1917:  Washington 

These,  therefore,  are  the  things  we  shall 
stand  for,  whether  in  war  or  peace — that  all 
nations  are  equally  interested  in  the  peace 
of  the  world  and  in  the  political  stability  of 
free  peoples,  and  are  equally  responsible 
for   their  maintenance;   that  the   essential 


202  A  Society  of  States 

principle  of  peace  is  the  actual  equality  of 
nations  in  all  matters  of  right  or  privilege; 
that  peace  cannot  securely  or  justly  rest 
upon  an  armed  balance  of  power ;  that  Gov- 
ernments derive  all  their  just  powers  from 
the  consent  of  the  governed,  and  that  no 
other  Powers  should  be  supported  by  the 
common  thought,  purpose,  or  poAvers  of  the 
family  of  nations;  that  the  seas  should  be 
equally  free  and  safe  for  the  use  of  all 
peoples  under  rules  set  up  by  common 
agreement  and  consent,  and  that  so  far  as 
is  practicable  they  should  be  accessible  to  all 
upon  equal  terms;  that  national  armaments 
should  be  limited  to  the  necessities  of  na- 
tional order  and  domestic  safety;  that  the 
community  of  interest  and  power  upon 
which  peace  will  henceforth  depend  imposes 
upon  each  nation  the  duty  of  seeing  to  it 
that  all  influences  proceeding  from  its  own 


Appendix  III  203 

citizens  meant  to  encourage  or  assist  revolu- 
tion in  other  States  should  be  sternly  and 
effectually  suppressed  and  prevented. 

I  need  not  argue  these  principles  to  you, 
my  fellow-countrymen.  They  are  your 
own — part  and  parcel  of  your  own  thinking, 
of  your  own  motive  in  affairs.  They  spring 
up  native  amongst  us.  Upon  this,  as  upon 
a  platform  of  purpose  and  action,  w^e  can 
stand  together,  and  it  is  imperative  that  we 
should  stand  together. 

Srd  April,  1917:  W asliington 

Our  object  ...  is  to  vindicate  the  prin- 
ciples of  peace  and  justice  in  the  life  of  the 
world  as  against  selfish  autocratic  power, 
and  to  set  up  amongst  really  free  and  self- 
governed  peoples  of  the  world  such  a  con- 
cert of  purpose  and  action  as  will  henceforth 
ensure  the  observance  of  these  principles. 


204  A  Society  of  States 

Neutrality  is  no  longer  feasible  or  desir- 
able where  the  peace  of  the  world  is  involved 
and  the  freedom  of  its  peoples,  and  the 
menace  to  that  peace  and  freedom  lies  in 
the  existence  of  autocratic  Governments 
backed  by  organized  force  which  is  con- 
trolled wholly  by  their  will  and  not  by  the 
will  of  their  people. 

We  have  seen  the  last  of  neutrality  in 
such  circumstances.  We  are  at  the  begin- 
ning of  an  age  in  wliich  it  will  be  insisted 
that  the  same  standards  of  conduct  and  re- 
sponsibility for  wi'ong  done  shall  be  ob- 
sei'ved  among  nations  and  their  Govern- 
ments that  are  observed  among  individual 
citizens  of  civilized  States.  .  .  . 

A  steadfast  concert  for  peace  can  never 
be  maintained  except  by  the  partnership  of 
democratic  nations.  No  autocratic  Govern- 
ment could  be  trusted  to  keep  faith  within 


Appendix  III  205 

it  or  observe  its  covenants.  There  must  be 
a  league  of  honour  and  partnership  of 
opinion.  Intrigue  would  eat  its  vitals 
away.  Plottings  by  inner  circles,  who  would 
plan  what  they  would  and  render  an  account 
to  no  one,  would  be  corruption  seated  at  its 
very  heart.  Only  free  peoples  can  hold  their 
purpose  and  their  honour  steady  to  the  com- 
mon end  and  prefer  the  interests  of  mankind 
to  any  narrow  interest  of  their  own.  .  .  . 
We  are  now  about  to  accept  the  gage  of 
battle  with  this  natural  foe  to  liberty,  and 
shall,  if  necessary,  spend  the  whole  force  of 
the  nation  to  check  and  nullify  its  preten- 
sions and  its  power.  We  are  glad,  now  that 
we  see  facts  with  no  veil  of  false  pretence 
about  them,  to  fight  thus  for  the  ultimate 
peace  of  the  world,  for  the  liberation  of  its 
peoples — the  German  peoples  included — 
the  rights  of  nations  great  and  small,  and 


206  A  Society  of  States 

the  privilege  of  men  everywhere  to  choose 
their  way  of  life  and  obedience.  The  world 
must  be  safe  for  democracy.  Its  peace  must 
be  planted  upon  trusted  foundations  of 
political  liberty.  .  .  . 

Civilization  itself  seems  to  be  in  the 
balance;  but  right  is  more  precious  than 
peace,  and  we  shall  fight  for  the  things 
\^^hich  we  have  ahvays  carried  nearest  our 
hearts — for  democracy,  for  the  right  of  those 
who  submit  to  authority  to  have  a  voice  in 
their  own  government,  for  the  rights  and 
liberties  of  small  nations,  for  the  universal 
dominion  of  right  by  such  a  concert  of  free 
peoples  as  will  bring  peace  and  safety  to 
all  nations  and  make  the  world  itself  at  last 
free. 

To  such  a  task  we  can  dedicate  our  lives, 
our  fortunes,  everything  we  are,  everything 
we  have,  with  the  pride  of  those  who  know 


Appendix  III  207 

the  clay  has  come  when  America  is  privi- 
leged to  spend  her  blood  and  might  for  the 
principles  that  gave  her  birth,  and  the  haj)- 
piness  and  peace  which  she  has  treasured. 
God  helping  her,  she  can  do  no  other. 

30th  August,  1917:  Reply  to  the  Pope's 

Note 

Responsible  statesmen  must  now  every- 
where see,  if  they  never  saw  before,  that  no 
peace  can  rest  securely  upon  political  re- 
strictions meant  to  benefit  some  nations  and 
cripple  or  embarrass  others,  upon  vindictive 
action  of  any  sort,  or  any  kind  of  revenge 
or  deliberate  injury.  The  American  people 
have  suffered  intolerable  wrongs  at  the 
hands  of  the  Imperial  German  Government, 
but  they  desire  no  reprisal  upon  the  Ger- 
man people,  who  have  themselves  suffered 
all  things  in  this  war  which  they  did  not 


208  A  Society  of  States 

choose.  They  beHeve  that  peace  should  rest 
upon  the  rights  of  peoples,  not  the  rights 
of  Governments,  the  rights  of  peoples  great 
or  small,  weak  or  powerful,  their  equal  right 
to  freedom  and  security  and  self-govern- 
ment, and  to  a  participation  upon  fair  terms 
in  the  economic  opportunities  of  the  world, 
the  German  peoples,  of  course,  included,  if 
they  will  accept  equality  and  not  seek 
domination.  .  .  . 

The  purposes  of  the  United  States  in  this 
war  are  known  to  the  whole  world — to  every 
people  to  whom  the  truth  has  been  per- 
mitted to  come.  They  do  not  need  to  be 
stated  again.  We  seek  no  material  advan- 
tages of  any  Idnd.  We  believe  that  the  in- 
tolerable wrongs  done  in  this  war  by  the 
furious  and  brutal  power  of  the  Imperial 
German  Government,  ought  to  be  repaired, 
but  not  at  the  expense  of  the  sovereignty 


Appendix  III  209 

of  any  people — rather  in  vindication  of  tlie 
sovereignty  both  of  those  that  are  weak  and 
of  those  that  are  strong.  Punitive  dam- 
ages, the  dismemberment  of  empires,  the 
establishment  of  selfish  and  exclusive  econ- 
omic leagues,  we  deem  inexpedient  and  in 
the  end  worse  than  futile,  no  proper  basis 
for  a  peace  of  any  kind,  least  of  all  for  an 
enduring  peace.  That  must  be  based  u^jon 
justice  and  fairness  and  the  common  rights 
of  mankind. 

Mh  December,  1917 

We  do  not  wish  in  any  way  to  impair  or 
to  re-arrange  the  Austro-Hungarian  Em- 
pire. It  is  no  affair  of  ours  what  they  do 
with  their  own  life,  either  industrially  or 
politically.  We  do  not  purpose  or  desire 
to  dictate  to  them  in  any  way.  We  only 
desire  to  see  that  their  affairs  are  left  in 


210  A  Society  of  States 

their  own  hands  in  all  matters,  great  or 
small.  .  .  .  And  our  attitude  and  purpose 
with  regard  to  Germany  herself  are  of  a 
like  kind.  We  intend  no  wrong  against  the 
German  Empire,  no  interference  with  her 
internal  affairs.  We  should  deem  either 
the  one  or  the  other  absolutely  unjustifiable, 
absolutely  contrary  to  the  principles  we 
have  professed  to  live  by  and  to  hold  most 
sacred  throughout  our  life  as  a  nation.  .  .  . 
The  worst  that  can  happen  to  the  detri- 
ment of  the  German  people  is  this — that  if 
they  should  still  after  the  war  is  over  con- 
tinue to  be  obliged  to  live  under  ambitious 
and  intriguing  masters  interested  to  disturb 
the  peace  of  the  world,  or  classes  of  men 
whom  the  other  peoples  of  the  world  could 
not  trust,  it  might  be  impossible  to  admit 
them  to  the  partnership  of  nations  which 
must    henceforth    guarantee    the    world's 


Appendix  III  211 

peace.  That  partnership  must  be  a  partner- 
ship of  peoples,  not  a  mere  partnership  of 
Governments.  It  might  be  impossible  also 
in  such  untoward  circumstances  to  admit 
Germany  to  the  free  economic  intercourse 
which  must  inevitably  spring  out  of  the 
other  partnership  of  a  real  peace.  But  there 
would  be  no  aggression  in  that,  and  such 
a  situation,  inevitable  because  of  distrust, 
would  be  in  the  very  nature  of  things  sooner 
or  later  cure  itself  by  processes  which  would 
assuredly  set  in. 

Sth  January,  1918:  Washington 

(The  Fourteen  Points) 

What  we  demand  in  this  war,  therefore, 
is  nothing  peculiar  to  ourselves.  It  is  that 
the  world  be  made  fit  and  safe  to  live  in, 
and  particularly  that  it  be  made  safe  for 


212  A  Society  of  States 

eveiy  peace-loving  nation  which,  like  our 
own,  wishes  to  live  its  own  free  life,  de- 
termine its  own  institutions,  be  assured  of 
justice  and  fair  dealing  by  the  other  peoples 
of  the  world,  as  against  force  and  selfish 
aggression.  All  the  peoples  of  the  world 
are  in  effect  partners  in  this  interest,  and 
for  our  own  part  we  see  very  clearly  that 
unless  justice  be  done  to  others  it  will  not 
be  done  to  us. 

The  programme  of  the  world's  peace, 
therefore,  is  our  programme,  and  that  pro- 
gramme, the  only  possible  one  as  we  see  it, 
is  this: 

I. — Open  covenants  of  peace  openly  ar- 
rived at,  after  which  there  shall  be  no 
private  international  understandings  of  any 
kind,  but  diplomacy  shall  proceed  alwaj'^s 
frankly  and  in  the  public  view. 


Appendix  III  213 

II. — Absolute  freedom  of  navigation 
upon  the  seas  outside  territorial  waters  alike 
in  peace  and  in  war  except  as  the  seas  may 
be  closed  in  whole  or  in  part  by  interna- 
tional action  for  the  enforcement  of  inter- 
national covenants. 

III. — The  removal,  so  far  as  possible,  of 
all  economic  barriers  and  the  establishment 
of  an  equality  of  trade  conditions  among  all 
the  nations  consenting  to  the  peace  and 
associating  themselves  for  its  maintenance. 

IV. — Adequate  guarantees  given  and 
taken  that  national  armaments  will  be  re- 
duced to  the  lowest  point  consistent  with 
domestic  safety. 

V. — A  free,  open-minded  and  absolutely 
impartial  adjustment  of  all  colonial  claims 
based  upon  a  strict  observance  of  the  prin- 
ciple that  in  determining  all  such  questions 


214  A  Society  of  States 

of  sovereignty  the  interests  of  the  popula- 
tions concerned  must  have  equal  weight 
with  the  equitable  claims  of  the  Govern- 
ment whose  title  is  to  be  determined.  .  .  . 

XIV. — A  general  association  of  nations 
must  be  formed  under  specific  covenants 
for  the  purpose  of  affording  mutual  guar- 
antees of  political  and  territorial  inde- 
pendence for  great  and  small  States  alike. 

11th  Fehruury,  1918:  Washington 

Whatever  affects  the  peace  affects  man- 
kind, and  nothing  settled  by  military  force, 
W  settled  wrong,  is  settled  at  all.  It  will 
presently  have  to  be  re-opened.  .  .   . 

The  principles  to  be  appHed  are  these ; 

.  .  .  Second,  that  peoples  and  provinces 
are  not  to  be  bartered  about  from  sover- 
eignty to  sovereignty  as  if  they  were  mere 


Appendix  III  215 

chattels  and  pa\vTis  in  a  game,  even  the 
great  game  now  forever  discredited  of  the 
balance  of  power;  but  that 

Third,  every  territorial  settlement  in- 
volved in  this  war  must  be  made  in  the  in- 
terest and  for  the  benefit  of  the  populations 
concerned,  and  not  as  a  part  of  any  mere 
adjustment  or  compromise  of  claims 
amongst  rival  States. 

Mh  July,  1918 

The  past  and  the  present  are  in  deadly 
grapple,  and  the  peoples  of  the  world  are 
being  done  to  death  between  them.  .  .  . 

These  are  the  ends  for  which  the  asso- 
ciated peoples  of  the  world  are  fighting,  and 
which  must  be  conceded  them  before  there 
can  be  peace.  .  .  . 

Third,  the  consent  of  all  nations  to  be 


216  A  Society  of  States 

governed  in  their  conduct  towards  each 
other  by  the  same  principles  of  honour  and 
of  respect  for  the  common  law  of  civilized 
society  that  govern  the  individual  citizens 
of  all  modern  States  in  their  relations 
with  one  another,  to  the  end  that  all 
promises  and  covenants  may  be  sacredly 
observed,  no  private  plots  or  conspiracies 
hatched,  no  selfish  injuries  wrought  with 
impunity,  and  a  mutual  trust  established 
upon  the  handsome  foundation  of  a  mutual 
respect  for  right. 

Fourth,  the  establishment  of  an  organiza- 
tion of  peace  which  shall  make  it  certain 
that  the  combined  power  of  free  nations  will 
check  every  invasion  of  right  and  serve  to 
make  peace  and  justice  the  more  secure  by 
affording  a  definite  tribunal  of  opinion  to 
which  all  must  submit,  and  by  which  every 
international  readjustment  that  cannot  be 


Appendix  III  217 

aniically   agreed  upon  by  the   peoples   di- 
rectly concerned  shall  be  sanctioned. 

These  great  objects  can  be  put  into  a 
single  sentence.  What  we  seek  is  the  reign 
of  law  based  upon  the  consent  of  the  gov- 
erned and  sustained  by  the  organized 
opinion  of  mankind. 

21th  September,  1918:  New  York 

We  accepted  the  issues  of  the  war  as 
facts,  not  as  any  group  of  men  either  here 
or  elsewhere  had  defined  them,  and  we  can 
accept  no  outcome  Avhich  does  not  squarely 
meet  and  settle  them. 

The  issues  are  these: 

Shall  the  military  power  of  any  nation, 
or  group  of  nations,  be  suffered  to  deter- 
mine the  fortunes  of  peoples  over  whom  they 
have  no  right  to  rule  except  the  right  of 
force? 


218  A  Society  of  States 

Shall  strong  nations  be  free  to  wrong 
weak  nations  and  make  them  subject  to  their 
purposes  and  interest? 

Shall  peoples  be  ruled  and  dominated, 
even  in  their  own  internal  affairs,  by  arbi- 
trary and  irresponsible  force,  or  by  their 
own  will  and  choice? 

Shall  there  be  a  common  standard  of  right 
and  privilege  for  all  peoples  and  nations,  or 
shall  the  strong  do  as  they  will,  and  the 
weak  suffer  without  redress? 

Shall  the  assertion  of  right  be  haphazard 
and  by  casual  alliance,  or  shall  there  be  a 
common  concert  to  oblige  the  observance  of 
common  rights? 

No  man,  no  group  of  men,  chose  these  to 
be  the  issues  of  the  struggle.  They  are  the 
issues  of  it. 

If  it  be,  in  deed  and  in  truth,  the  com- 
mon object  of  the  Governments  associated 


Appendix  III  219 

against  Germany  and  of  the  nations  whom 
they  govern,  as  1  believe  it  to  be,  to  achieve 
by  the  coming  settlements  a  secure  and  last- 
ing peace,  it  will  be  necessary  that  all  who 
sit  down  at  the  peace  table  shall  come  ready 
and  willing  to  pay  the  price,  the  only  price, 
that  will  procure  it;  and  ready  and  willing 
also  to  create  in  some  virile  fashion  the  only 
instrumentality  by  which  it  can  be  made 
certain  that  the  agreements  of  the  peace  will 
be  honoured  and  fulfilled.  That  price  is 
impartial  justice  in  every  item  of  the  settle- 
ment, no  matter  whose  interest  is  crossed; 
and  not  only  impartial  justice,  but  also  the 
satisfaction  of  the  several  peoples  whose 
fortunes  are  dealt  with.  That  indispensable 
instrumentality  is  a  League  of  Nations 
formed  under  covenants  that  will  be  ineffi- 
cacious without  such  an  instrumentality  by 
which  the  peace  of  the  world  can  be  guaran- 


220  A  Society  of  States 

teed.  Peace  will  rest  in  part  upon  the  word 
of  outlaws,  and  only  upon  that  word.  For 
Germany  will  have  to  redeem  her  character, 
not  by  what  happens  at  the  peace  table  but 
by  what  follows. 

And  as  I  see  it,  the  constitution  of  that 
League  of  Nations  and  the  clear  definition 
of  its  objects  must  be  a  part,  in  a  sense  the 
most  essential  part,  of  the  peace  settlement 
itself.  It  cannot  be  formed  now.  If  formed 
now  it  would  be  merely  a  new  alliance  con- 
fined to  the  nations  associated  against  a  com- 
mon enemy.  .  .  . 

But  these  general  terms  do  not  disclose 
the  whole  matter.  Some  details  are  needed 
to  make  them  sound  less  like  a  thesis  and 
more  like  a  practical  prograrmne.  These, 
then,  are  some  of  the  particulars,  and  I  state 
them  with  the  greater  confidence  because  I 
can  state  them  authoritatively  as  represent- 


Appendix  III  221 

ing  tliis  Government's  interpretation  of  its 
own  duty  with  regard  to  peace: 

First,  the  impartial  justice  meted  out 
must  involve  no  discrimination  between 
those  to  whom  we  wish  to  be  just  and  those 
to  whom  we  do  not  wish  to  be  just.  It 
must  be  a  justice  that  has  no  favourites  and 
knows  no  standards  but  the  equal  rights  of 
the  several  peoples  concerned. 

Second,  no  special  or  separate  interest  of 
any  single  nation  or  any  group  of  nations 
can  be  made  the  basis  of  any  part  of  the 
settlement  which  is  not  consistent  with  the 
common  interest  of  all. 

Third,  there  can  be  no  leagues  or  alliances 
or  special  covenants  and  understandings 
within  the  general  and  common  family  of 
the  League  of  Nations. 

Fourth,  and  more  specifically,  there  can 
be  no  special,  selfish  economic  combinations 


222  A  Society  of  States 

within  the  League,  and  no  employment  of 
any  form  of  economic  boycott  or  exclusion, 
except  as  the  power  of  economic  penalty,  by 
exclusion  from  the  markets  of  the  world, 
may  be  vested  in  the  League  of  Nations 
itself  as  a  means  of  discipline  and  control. 

Fifth,  all  international  agreements  and 
treaties  of  every  kind  must  be  made 
known  in  their  entirety  to  the  rest  of  the 
world.  .  .  . 

In  the  same  sentence  in  which  I  say  that 
the  United  States  will  enter  into  no  special 
arrangements  or  understandings  with  par- 
ticular nations  let  me  say  also  that  the 
United  States  is  prepared  to  assume  its  full 
share  of  responsibility  for  the  maintenance 
of  the  common  covenants  and  understand- 
ings upon  which  peace  must  henceforth  rest. 

We  still  read  Washington's  immortal 
Vv'arning  against  "entangling  alliances"  with 


Appendix  III  223 

full  comprehension  and  an  answering  pur- 
pose. But  only  special  and  limited  alliances 
entangle;  and  Ave  recognize  and  accept  the 
duty  of  a  new  da}^  in  which  we  are  per- 
mitted to  hope  for  a  general  alliance,  which 
will  avoid  entanglements  and  clear  the  air 
of  the  world  for  common  understandings 
and  the  maintenance  of  common  rights. 


VISCOUNT  GREY'S  PROPOSALS 


APPENDIX  IV 

Viscount  Grey's  Proposals 

(From  his  speech  at  Westminster,  10th 
October,  1918) 

LET  me  take  one  or  two  points  which 
we  ought  to  have  definitely  settled  in 
our  minds  in  regard  to  the  working 
of  the  League  of  Nations.  How  is  it  going 
to  affect  the  fiscal  question,  for  instance? 
There,  again,  I  take  what  I  understand  to 
be  President  Wilson's  attitude  the  other 
day.  He  says,  "No  economic  boycott  within 
the  League  of  Nations,"  but  he  leaves,  or 
I  understand  he  contemplates  leaving,  each 
individual  member  of  the  League  of  Nations 

227 


228  A  Society  of  States 

— each  Empire,  each  State,  each  Republic, 
whatever  it  may  be — free  within  the  League 
to  settle  its  own  fiscal  questions  for  itself. 
We  may  have  our  own,  and  we  probably 
shall  have  our  own,  fights  here  on  the  fiscal 
question.  It  will  be  very  surprising  if  there 
is  not  some  discussion  and  some  controversy, 
but  with  regard  to  the  League  of  Nations 
you  may  keep  that  outside  the  question  of 
the  League,  and  settle  it  for  yourselves  in 
your  own  way;  but  having  settled  your 
fiscal  system,  you  must  recognize  that  in  a 
League  of  Nations  you  will  be  bound  to 
apply  that  fiscal  system,  whatever  it  may 
be,  equally  to  all  the  other  members  of  the 
League.  You  won't  be  able  to  differentiate 
amongst  them.  Tliat  I  understand  to  be 
the  principle  laid  down  by  President  Wil- 
son, and  that  is  the  principle  which  ccrtainlj'^ 
commends  itself  to  me.     That,  I  think,  is 


Appendix  IV  229 

a  principle  which  must  be  accepted  if  the 
League  of  Nations  is  to  be  a  League  that 
will  guarantee  the  peace  of  the  world. 

There  is  another  important  point  in  con- 
nexion with  the  fiscal  side  of  the  League 
of  Nations.  During  this  war  there  has  been 
brought  into  existence  an  economic  boycott 
of  the  enemy  countries.  I  am  told  it  has 
been  very  effective.  The  machinery  for  it 
is  in  existence.  In  my  opinion  the  Allies 
who  have  brought  that  machinery  into  ex- 
istence should  keep  that  machinery  ready  as 
part  of  the  League  of  Nations,  and  if  in 
future  years  an  individual  member  of  the 
League  of  Nations  breaks  the  covenant  of 
that  League,  that  economic  weapon  is  going 
to  be  a  most  powerful  weapon  in  the  hands 
of  the  League  as  a  whole.  I  think  that 
economic  weapon  is  most  valuable  as  a 
future  influence  in  keeping  the  peace  and 


230  A  Society  of  States 

in  deterring  nations  who  have  come  into  the 
League  of  Nations  from  breaking  any 
covenant  in  the  League.  It  will  be  a  most 
valuable  influence  for  that  purpose,  but  then 
if  it  is  to  be  a  valuable  influence  for  that 
purpose  you  must  not  bring  it  into  existence 
before  the  purpose  has  arisen,  or  before 
there  has  been  some  breach  of  the  covenant. 
Well,  now  I  come  to  another  thorny  and 
difficult  subject  connected  with  the  League 
of  Nations,  the  question  of  what  is  called 
disarmament.  I  have  tried  as  far  as  I  can 
to  get  the  fiscal  difficulties  put  as  clearly  as 
possible  so  that  they  will  not  stand  in  the 
way  of  a  League  of  Nations.  You  have 
got  to  handle  also  this  question  of  disarma- 
ment very  carefully.  You  will  have  many 
apprehensions  in  this  country  that  somehow 
or  other  a  League  of  Nations  is  going  to 
put  us  in  a  disadvantageous  position,  where 


Appendix  IV  231 

we  may  be,  by  bad  faith  or  otherwise,  put 
in  a  position  in  which  we  are  not  sufficiently 
capable  of  defending  ourselves.  I  think  you 
have  got  to  go  very  carefully  in  your  League 
of  Nations  with  regard  to  definite  pro- 
posals that  may  be  suggested  or  adopted 
with  regard  to  what  is  called  disarmament. 
One  thing  I  do  not  mind  saying.  Before 
this  war  the  expenditure  on  armaments, 
naval  and  military,  had  been  going  up  by 
leaps  and  bounds.  Germany  had  been 
forcing  the  pace  in  both.  She  has  led  the 
way  up  the  hill  in  increasing  expenditure  on 
armaments.  She  must  lead  the  way  down 
the  hill.  That  that  is  a  first  condition  from 
our  point  of  view  goes  without  saying — • 
there  can  be  no  talk  of  disarmament  until 
Germany,  the  great  armer,  has  disarmed. 

But  then  I  think  we  must  go  further  than 
that.    I  think  the  League  of  Nations  might 


232  A  Society  of  States 

insist  upon  each  Government  which  is  a 
member  of  the  League  of  Nations  becoming 
itself  responsible  for  the  amount  of  arma- 
ments made  in  its  own  country.  Your  diffi- 
culty now  is  that  in  a  given  country  there 
may  be  a  vast  number  of  ships  of  war,  guns, 
and  munitions  of  war  being  made,  and  the 
Government  may  say,  "Oh,  these  are  being 
made  by  private  firms  for  other  countries, 
and  we  have  nothing  to  do  with  them."  I 
do  not  see  why  it  should  be  impossible  for 
Governments  to  agree  that  they  will  keep 
that  matter  in  their  own  hands,  that  they 
will  give  the  fullest  public  information  and 
the  fullest  opportunities  for  acquiring  in- 
formation as  to  the  actual  amount  of  what 
are  called  armaments  being  constructed,  or 
available  in  each  country  at  any  given  time. 
I  do  not  see  why  that  should  not  be  done 
in  the  future.    And  if  that  were  done,  and 


Appendix  IV  233 

you  found  some  Governments  beginning  to 
force  the  pace  in  armaments,  I  rather  think 
that  \^ou  would  find  the  matter  being 
brought  before  the  League  of  Nations,  and 
a  discussion  would  arise  as  to  whether  it  was 
time  to  bring  the  economic  weapon  into  use 
before  things  went  further.  The  League 
of  Nations  may  have  considerable  power, 
provided  the  Governments  admit  responsi- 
bility with  regard  to  the  amount  of  arma- 
ments being  constructed. 

But  remember,  even  so,  that  you  will 
never,  by  any  regulations  you  may  make 
about  armaments,  dispose  completely  of  the 
question.  Supposing  to-morrow,  or  after 
the  war  is  over,  the  financial  pressure  were 
so  great,  and  the  feeling  that  another  war 
was  remote  was  so  strong,  that  ships  of  war, 
munitions  of  war,  ceased  to  be  constructed 
in   the  world  at  large,   and  tliose   now   in 


234  A  Society  of  States 

existence  were  allowed  to  lapse  or  become 
obsolete  until  armaments  had  disappeared 
in  the  form  in  Avhich  we  know  them.  Sup- 
posing all  that  happened,  you  would  not 
have  settled  the  question,  because  then  the 
potential  weapons  of  war  would  be  your 
merchant  ships  and  commercial  aeroplanes. 
All  those  things  will  be  developed  after  the 
war,  and  in  the  construction  of  those  things 
you  can  have  no  limitation — they  must  go 
on  being  built  by  private  firms.  You  can- 
not limit  the  merchant  ships  or  the  amount 
of  commercial  aeroplanes  to  be  built,  and 
the  fewer  the  armaments,  fighting  aero- 
planes, and  ships  of  war  in  the  ordinarily 
accepted  sense,  the  more  important  poten- 
tially as  weapons  of  Avar  become  the  things 
you  use  in  commerce,  your  ships,  aeroplanes, 
and  chemicals  of  all  kinds.  Well,  then,  is 
not  the  moral  of  it  all  this,  that  the  one 


Appendix  IV  235 

thing  which  is  going  to  produce  disarma- 
ment in  the  world  is  a  sense  of  security? 
And  it  is  because  I  beheve  that  a  League 
of  Nations  may  produce,  and  will  produce, 
that  sense  of  security  in  the  world  at  large 
which  will  make  disarmament — disarma- 
ment in  the  sense  of  the  reduction  of  arma- 
ments— a  reality  and  not  a  sham,  that  is  one 
reason  for  advocating  a  League  of  Nations 
in  order  that  we  may  have  that  sense  of 
security. 

Now  I  come  to  one  other  point.  We 
must  with  a  League  of  Nations  be  sure  that 
in  all  these  ideals  which  have  been  put  for- 
ward— that  in  putting  forward  these  ideals 
we  have  been  saying  what  we  mean  and 
meaning  what  we  said.  When  the  time 
comes,  and  the  war  has  been  brought  to  a 
successful  conclusion,  we  must  make  it  clear 
that  the  object  of  the  League  of  Nations 


236  A  Society  of  States 

movement  has  been  to  get  a  League  of  Na- 
tions formed — and  that  is  clear  in  every 
speech  President  Wilson  has  made  about  it 
— into  which  you  can  get  Germany,  and  not 
formed  in  order  that  you  may  find  a  pre- 
text for  keeping  Germany  out.  On  the 
other  hand,  your  League  of  Nations  must 
not  be  a  sham,  and  you  must  have  no  nation 
in  it  which  is  not  sincere.  That  means  that 
you  must  have  every  Government  in  the 
League  of  Nations  representing  a  free 
people,  a  free  peoj)le  which  is  as  thoroughly 
convinced  as  are  the  countries  who  now  de- 
sire the  League  of  Nations,  of  the  objects 
of  the  League,  and  are  thorouglily  deter- 
mined to  carry  out  those  objects  in  all  sin- 
cerity. That  you  must  do.  When  you  come 
to  define  democracy — real  democracy,  and 
not  sham  democracy — I  would  call  to  mind 
that  it  is  not  a  question  of  defining  special 


Appendix  IV  237 

conditions.  We  here,  under  the  form  of 
constitutional  monarchy,  are  as  democratic 
as  any  republic  in  the  world;  and  I  trust 
the  people  of  this  country  to  do  what  INIr. 
John  Morley,  as  he  then  was,  once  said  with 
regard  to  a  Jingo.  He  said,  "I  cannot  de- 
fine a  Jingo,  but  I  know  one  when  I  see 
him."  I  believe  the  people  of  this  country 
are  perfectly  capable,  though  they  may  not 
wish  to  define  what  constitutes  a  democracy, 
of  knowing  a  democracy  when  they  see  it. 
As  President  Wilson  has  repeatedly  said, 
vou  can  trust  no  Government  which  does 
not  come  to  you  with  the  credentials  that 
it  exists  with  the  confidence  of  the  people 
behind  it,  and  is  responsible  to  that  people, 
and  to  no  one  else. 

But  there  are  one  or  t^vo  tilings  more 
which  I  think  may  be  done  by  a  League  of 
Nations,    and    which    are    very    important. 


238  A  Society  of  States 

Supposing  the  League  once  formed,  the 
treaty  is  signed,  the  treaty  binding  the  na- 
tions composing  the  League  to  settle  any 
disputes  that  may  arise  between  them  by 
some  method  other  than  that  of  war,  and 
each  of  them  undertaking  an  obligation  that, 
if  any  nation  does  break  that  covenant, 
they  will  use  all  the  forces  at  their  disposal 
against  that  nation  which  has  so  broken  it. 
Supposing  that  done,  I  think  more  use  can 
be  made  of  the  League  of  Nations  than 
that.  There  is  work  for  it  to  do  from  day 
to  day  which  may  be  very  valuable.  I  do 
not  see  why  the  League  of  Nations,  once 
formed,  should  necessarily  be  idle.  I  do  not 
see  whj^  it  should  not  arrange  for  an  author- 
ity and  an  international  force  at  its  disposal 
which  should  act  as  police  act  in  individual 
countries.  It  sometimes  happens,  for  in- 
stance, when  a  wrong  is   done  for  which 


Appendix  IV  239 

some  backward  country,  very  often  a  small 
backward  country,  will  not  give  redress.  Its 
Goverimient  perhaps  lacks  authority,  and 
you  have  seen  from  time  to  time  that  in 
such  circumstances  a  stronger  nation  has  re- 
sorted to  force  and  seized  a  port  or  brought 
some  other  pressure  of  that  kind  to  bear. 
And  then  you  had  the  jealousy  of  other 
nations  existing,  thinking  that  the  stronger 
nation,  in  seeldng  redress,  is  in  some  way 
pursuing  its  own  interests.  I  think  these 
cases  might  be  settled,  if  force  be  necessary, 
by  a  League  of  Nations  if  it  had  an  inter- 
national force  at  its  disposal,  without  giving 
rise  to  the  suspicions  and  jealousies  of  cer- 
tain political  aims  being  pursued. 

Another  thing  it  may  do.  It  may  pos- 
sibly do  a  great  deal  with  regard  to  Labour. 
Mr.  Barnes  said  that  his  presence  in  the 
War  Cabinet  was  temporary,  I  think  he 


240  A  Society  of  States 

said  accidental  and  embarrassing.  Well, 
public  positions  are  generally  embarrassing, 
but  I  doubt  Mr.  Barnes'  position  being 
either  temporary  or  accidental.  I  think 
Labour  is  undoubtedly  going  to  take  a 
larger  and  more  prominent  share  in  the 
Governments  than  it  has  done  before.  It 
may  be  that  here,  as  elsewhere,  we  shall  have 
Labour  Governments.  Well,  now,  I  put 
this  forward  only  tentatively.  Labour  now 
has  its  international  conferences,  but  they 
are  unofficial.  Is  it  not  possible  that  as 
Labour  takes  a  larger  and  more  prominent 
share  in  government  it  may  find  a  League 
of  Nations  useful  as  a  means  of  giving  a 
more  oflficial  character  to  these  international 
consultations  in  the  interest  of  Labour  which 
independent  Labour  has  already  encouraged 
and  taken  so  much  part  in? 

Then  I  would  give  you  another  suggcs- 


Appendix  IV  241 

tion,  and  it  is  the  last  on  this  point.  There 
are  countries  of  the  world,  independent  na- 
tions, but  more  loosely  organized,  or  for 
one  reason  or  another  incapable  through 
their  Governments  of  managing  their  own 
affairs  effectively  from  the  point  of  view  of 
those  other  more  highly  organized  countries 
who  wish  to  trade  with  them,  and  they  want 
assistance  in  the  shape  of  officials  from  the 
more  highly  organized  countries.  A  great 
example  of  that  is  the  JNIaritime  Customs 
Service  in  China,  formed  by  the  Chinese 
Government  under  Sir  Robert  Hart,  and 
working  as  an  international  force,  I  believe, 
^vith  the  approval  of  the  whole  world  in  the 
interests  of  China  and  of  the  world  gen- 
erally. Well,  that  was  done — I  give  it  as 
an  illustration — for  the  Chinese  Govern- 
ment, but  there  are  other  countries  in  the 
world  where  that  sort  of  thing  is  even  more 


242  A  Society  of  States 

needed,  and  it  is  very  seldom  done  because 
the  weaker  country  which  needs  it  is  afraid 
of  admitting  foreign  officials,  for  fear  they 
may  have  some  political  design  and  inter- 
est. It  is  discouraged  because  individual 
countries  are  each  jealous  of  one  another 
getting  a  footing  in  some  of  these  more 
backward  countries,  through  officials.  But, 
if  you  had  your  League  of  Nations,  A\'hat 
was  done  for  China  in  the  form  of  an  In- 
ternational Customs  Service,  to  the  benefit 
of  Cliina  and  the  whole  world,  might  be  done 
in  other  countries  wliich  need  that  sort  of 
assistance.  What  has  prevented  it  being 
done  is  the  jealousy  the  stronger  States  have 
of  one  another  and  the  fear  of  the  weaker 
nation  that  it  is  going  to  admit  political 
influence  and  sacrifice  independence.  But 
if  this  were  done  on  the  authority  of  a 
League  of  Nations  there  would  be  much 


Appendix  IV  243 

less  chance  of  these  jealousies,  and  much  less 
chance  of  weaker  nations  being  afraid  of 
idterior  designs,  and  the  trade  of  the  world 
and  that  of  individual  States  might  benefit 
enormously  by  the  confidence  with  Avhich 
that  assistance  could  be  given  if  given  under 
a  Leamie  of  Nations  and  not  bv  one  indi- 
vidual  country  or  group  of  countries. 


THE  END. 


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